Six Pennsylvania judges challenge mandatory retirement as unconstitutional

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Six judges, including one from Westmoreland County and some of the most prominent judges sitting in Philadelphia, have filed a lawsuit in Commonwealth Court challenging the constitutionality of the requirement that all Pennsylvania justices and judges retire at the end of the year in which they turn 70.

The plaintiffs are Philadelphia Common Pleas Senior Judge Benjamin Lerner; three other Philadelphia Common Pleas judges -- Joseph D. O'Keefe, John W. Herron and Sandra Mazer Moss; Westmoreland County Common Pleas Judge John J. Driscoll; and Northampton County Common Pleas Judge Leonard N. Zito.

Judge Lerner was forced to retire at the start of this year; Judges Moss and Zito will be forced to retire at the start of next year; Judge Zito will be forced to retire at the start of 2014; and Judges Herron and O'Keefe will be forced to retire at the start of 2015, according to the complaint.

The judges argue the state constitutional mandate that all Pennsylvania judges and justices retire at the end of the calendar year in which they turn 70 violates their federal constitutional rights to equal protection and due process and their state constitutional rights for "enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness."

The issue could have an impact on the future of the state Supreme Court because four of the current six justices will reach the age of 70 in the next six years: Pennsylvania Chief Justice Ronald D. Castille and Justices Max Baer, J. Michael Eakin and Thomas G. Saylor.

The issue also is being portrayed as one of civil rights for older Americans because "age, like race, sex, and national origin, is an immutable characteristic," according to the complaint.

Judge Lerner said in an interview that he agreed to be a plaintiff in the case because "it's become clearer and clearer that people don't suddenly lose their ability to perform a job because they reach a certain age."

Judges are the only state employees who are required to retire at a certain age. Likewise, private employers also are not allowed to require their employees to retire because they reach a certain age, said Robert C. Heim of Dechert, who is representing the plaintiffs.

Named as defendants are Gov. Tom Corbett, Pennsylvania Secretary of State Carol T. Aichele, state Treasurer Rob McCord and state Court Administrator Zygmont A. Pines. Mr. Corbett was named because he "has the final authority to enforce the mandatory retirement provision."

A spokesman for the Administrative Office of Pennsylvania Courts and Mr. Corbett's press office declined comment..

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Amaris Elliott-Engel: aelliott-engel@alm.com or 215-557-2354. To read more articles like this, visit www.thelegalintelligencer.com.


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