HARRISBURG -- Efforts are underway on several fronts to abolish the long-standing constitutional requirement that Pennsylvania judges and justices retire at age 70.
The issue ultimately may be decided by a group with a direct interest in the outcome: the state Supreme Court, which has four members who will reach that age in the next five years.
The high court recently took the unusual step of assuming jurisdiction in a lower court case challenging mandatory retirement for judges and justices, and it ordered an expedited hearing of the issue. The justices will hear arguments May 8.
If mandatory retirement stayed in place, Chief Justice Ronald D. Castille would be required to retire at the end of next year. He is running for retention this year, despite being eligible to serve only one year of the 10-year term he would get if he wins. Justice Thomas G. Saylor would be out after 2016; Justice Max Baer after 2017; and Justice J. Michael Eakin after 2018.
The mandatory retirement provision has existed since 1969 and was affirmed in a state Supreme Court ruling in 1989.
Robert C. Heim, the Philadelphia lawyer who filed the most recent challenge on behalf of several judges, said he did so because "I thought it was an important issue not only for the courts but society generally. We're an aging population and we're a healthier population. Many people feel that work is an important part of their dignity. Times have changed, and it's time to take a fresh look at things."
District Attorney John M. Morganelli of Northampton County said he agrees that judges shouldn't be subjected to age discrimination but said the Supreme Court was the wrong place for the issue to be decided. He said the justices were risking further damage to public trust in the judicial system by doing so.
"I don't believe it's proper for justices of the Supreme Court of Pennsylvania to set aside the constitution just because they happen to be nearing the age of 70," he said in an interview Monday.
Judges have filed several recent lawsuits challenging mandatory retirement. As it stands, there are two principal pending cases: the one before the state Supreme Court and a similar case in U.S. District Court.
The judge in the federal case recently put a 90-day hold on the proceedings, saying he wanted to see how the Pennsylvania case turned out.
Meanwhile, legislation has been introduced in the state Senate to begin the process of amending the constitution to end forced retirements of judges. Another bill, pending in the House, would raise the mandatory retirement age to 75.
Mr. Morganelli said that is how the change should be made -- by amending the constitution, which requires passage of legislation in two consecutive sessions followed by a statewide referendum. "The people, through their constitution, can do this," he said.
Mr. Heim said he agrees the constitution should be changed but doesn't want to wait for the legislative and referendum process. "It is a long, cumbersome, complicated process. By the time that process plays out, a number of my clients [judges] will have been retired, forcibly," he said.
On the issue of whether it is proper for the high court to hear a matter that directly impacts its members, Mr. Heim cited the "rule of necessity," which allows judges to hear matters that affect them if there is no other available tribunal.
Mr. Morganelli said there is another tribunal, citing the case before U.S. District Judge John E. Jones III in the Middle District of Pennsylvania. Judge Jones, in an order last week staying that case for 90 days, said the two cases "are two trains proceeding on parallel tracks and, with the recent scheduling of oral argument before the Supreme Court of Pennsylvania, the [state] train is rapidly pulling ahead."
Mr. Heim said if the judges lose the Pennsylvania case, they will pursue victory in federal court. They need only prevail in one of the two cases to overturn the mandatory retirement provision.
When judges are forced to retire, some of them return to limited duty as senior judges. Rather than making the $169,541 salary paid to active Common Pleas Court judges, they are paid $522 per day worked.
"There is no reasonable -- or even rational -- basis for paying senior judges less money for the same work than judges who have not been forced to retire," Mr. Heim said in his federal court filing. The mandatory retirement provision "unfairly and arbitrarily deprives Pennsylvania justices and judges of their employment solely on the basis of age, rather than on the basis of any rational or reasonable test of physical, mental, or professional ability.
"Many citizens in our country have been subjected to stereotyped distinctions between the young and the old, including that older people are often senile, incompetent, lack productivity, suffer from rigid thinking, are unable to continue to learn, forgetful and likely to develop dementia. The mandatory retirement provision of the Pennsylvania Constitution has the lamentable effect of perpetuating these pernicious stereotypes."
The Allegheny County Bar Association has not taken a position on the matter, executive director David Blaner said. Nor has the statewide nonprofit overhaul group Pennsylvanians for Modern Courts.
"We see arguments on both sides. There are a lot of competing interests, and everyone ages differently, so it is difficult to issue a blanket statement that after a certain age, people are unable to sit on the bench," said Suzanne R. Almeida, a program associate for the nonprofit, in an email.
Mr. Morganelli said it would be "imprudent" for the Supreme Court to hear the case, saying it has been tarnished by the recent conviction of Justice Joan Orie Melvin, while the judiciary in general has been harmed by the Kids for Cash and Philadelphia Traffic Court scandals.
"The integrity of our courts and of the judges who sit on them is fundamental to our system. Setting aside Pennsylvania's Constitution via judicial fiat by justices with a personal and financial interest in the outcome is dangerous and wrong," he said. "Only time will tell whether self-interest trumps the constitution."
Jon Schmitz: firstname.lastname@example.org or 412-263-1868.