Pennsylvania Judges Lose Challenge to Age Limit

     (CN) – Pennsylvania’s requirement that judges retire when they turn 70 does not violate their constitutional rights, a federal judge ruled.
     In 1968 Pennsylvania voters ratified a state constitutional amendment requiring judges to retire when they turn 70, after which they may serve as senior judges for $522 per day, minus sick days, life insurance and pay for chambers work.
     A group of senior judges challenged the revision last November, claiming it discriminates against them based on their age and violates their rights by forcing them to retire.
     The defendants, Gov. Thomas Corbett and Secretary Carol Aichele, had the case removed to federal court and filed a motion to dismiss. Meanwhile, the Pennsylvania Supreme Court agreed to hear the case.
     U.S. District Judge John Jones III then stayed the federal lawsuit for 90 days, and the state Supreme Court ruled against the judges on June 17.
     “We do 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,” Justice Thomas Saylor wrote for the high court.
     Though the Supreme Court agreed that societal norms have changed since the late 1960s, it said the judges should seek a constitutional amendment rather than a court order.
     The high court refused to grant relief to Judges Rochelle Friedman and Alan Rubenstein a month later, holding that they failed to show “clearly, palpably and plainly – that the amendment is so unreasonable as to be considered irrational.”
     But Senior Judge Benjamin Lerner and Judges John Herron, Leonard Zito and Gerald Solomon countered that “the passage of time since [the amendment] first was enacted has eroded any possible justification” for compulsory retirement.
     They pointed to a “changed societal understanding of the effects of aging” and the fact that cognitive deterioration has occurred much less often in recent years, and added that the current senior-judge system and removal procedures for incapacitated jurists suffice.
     But the judges failed to convince their federal colleague in Harrisburg, who cited the 3rd Circuit’s 1980 decision in Malmed v. Thornburgh, which upheld Pennsylvania’s retirement-age provision against a similar equal protection challenge.
     Judge Jones noted that the U.S. Supreme Court followed suit in 1991 when it upheld Missouri’s age limit for judges in Gregory v. Ashcroft.
     “The provision plaintiffs seek to challenge is not merely the result of legislative action, but a state constitutional provision approved by the voters of the Commonwealth,” Jones wrote. “The distinction is important. Such provision ‘reflects both the considered judgment of the state legislature that proposed it and that of the citizens of [Pennsylvania] who voted for it’ (citing Gregory). Bearing this in mind, consistent with Gregory and Malmed, we cannot say that requiring retirement at age 70 represents an irrational means of seeking to ensure a well-functioning state judiciary.”
     Jones also threw out the plaintiffs’ procedural due-process claim, fully dismissing the amended complaint.
     “There is at least a superficial irony in having a judge who is appointed for life under Article III of the U.S. 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. Indeed, since the filing of this matter, the Pennsylvania House of Representatives has passed a joint resolution that would amend Article V, Section 16(b) to reflect a retirement age of 75 for state jurists, which bill is currently under consideration in the Senate Judiciary Committee. While we may personally doubt the continued efficacy of the current mandatory retirement age and see the joint resolution as a salutary revision of the law, for all of the foregoing reasons we cannot base our decision on this fact.”

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