Jon Campisi Sep. 25, 2013, 9:41am


The courts have spoken.

It appears as though Pennsylvania judges unhappy with the state’s mandatory judicial retirement age will have to go another route if they desire to continue their push to scrap the provision.

U.S. District Judge John E. Jones III, a federal jurist in Harrisburg who was assigned to oversee one of two challenges to the forced retirement rule, has dismissed an amended complaint filed by a handful of state judges challenging the constitutionality of Pennsylvania’s mandatory judicial retirement.

Another case posing similar challenges was dismissed at the state level earlier this year after the Pennsylvania Supreme Court, despite the fact some of its very own members would soon be personally affected by the mandatory retirement rule, determined the constitutional provision would have to be amended through means other than judicial ones.

The state Supreme Court justices in that other case determined that forced retirement didn’t amount to a violation of judges’ rights.

Meanwhile, a paralleling case was playing out before Jones in the Middle District of Pennsylvania, with the federal jurist earlier issuing a stay to first allow for the resolution of the state case.

In early April, Jones said his decision to stay the litigation stemmed from the fact that the two cases mirrored one another.

In a Sept. 24 memorandum and order, Jones wrote that it is up to the citizens of Pennsylvania and their elected representatives to amend and alter their state constitution if they so chose.

The courts, Jones wrote, simply aren’t the venue by which to seek relief in a case involving a constitutional amendment that was instituted by the people.

The state judges named as plaintiffs in the federal case argued that the mandatory retirement provision violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution.

Essentially, the plaintiffs contended that some amount of discrimination was behind the forced retirement provision since it was predicated on the fact that senior citizens might have trouble carrying out their job duties simply because of their chronological ages.

The state judges pointed to the Age Discrimination in Employment Act to bolster their cause.

They also claimed that societal and demographic changes since the adoption of the mandatory judicial retirement provision require revisiting the issue.

The plaintiffs averred that the incidence of cognitive deterioration has decreased considerably in recent years and that there has been a change in the societal understanding of the effects of aging.

The defendants, who included Gov. Tom Corbett and members of his administration, simply argued that such a policy judgment “is not within the competency of the courts,” according to Jones’ memorandum.

Jones wrote that the plaintiffs’ argument based on changed conditions is “unconvincing.”

“As a general matter, it is unclear whether consideration of changed circumstances is appropriate to an equal protection inquiry,” Jones wrote in his memorandum.

Jones said that it is important to make the distinction between a legislative action undertaken by elected representatives and a state constitutional amendment approved by the voters of the commonwealth.

In this case, the judicial plaintiffs were taking issue with the latter.

“Bearing this in mind … we cannot say that requiring retirement at age 70 represents an irrational means of seeking to ensure a well-functioning state judiciary,” Jones wrote.

As for the due process claim – the defendants argued the plaintiffs had no constitutionally protected property interest in continued judicial employment – Jones agreed with Corbett and the governor’s codefendants that a “Pennsylvania judge’s property interest in his or her employment is expressly limited by the condition, embedded in the state Constitution, that he or she be retired upon reaching 70, precluding any claim based on procedural due process.”

The plaintiffs had asserted that their due process rights would be violated if forced to retire without cause and before the end of their respective elected terms played out.

While Jones ruled against the state judges, he offered some sympathy for his state-level colleagues.

“There is at least a superficial irony in having a judge who is appointed for life under Article III of the United States Constitution rule against his judicial colleagues on the courts of this Commonwealth who must hang up their robes at age 70,” Jones wrote. “And we confess that this causes us no small amount of discomfort. But at the end of the day, it is for the citizens of the Commonwealth and their elected representatives to amend and alter the subject provision, not this Court.”

Jones pointed out that since the filing of the lawsuit, the state House of Representatives passed a joint resolution that would amend the commonwealth’s constitution raising the judicial retirement age to 75.

The measure is currently being considered by the state Senate Judiciary Committee.

The plaintiffs in the federal case included Judges Benjamin Lerner, Sandra Mazer Moss, John W. Herron, Joseph O’Keefe, Leonard Zito, Gerald Solomon and John Driscoll.

Lerner, Moss, Herron and O’Keefe are Common Pleas Court judges from Philadelphia.

Zito is a state judge from Northampton County, Solomon is a Common Pleas Court judge from Fayette County, and Driscoll is a jurist in Westmoreland County.

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