Pa. high court rejects changing mandatory retirement for judges

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The state Supreme Court Monday found that judges challenging Pennsylvania's mandatory retirement age had no legitimate claim and instead said that the proper way to change it is through constitutional amendment.

The lawsuit, filed by four judges in November 2012 against Gov. Tom Corbett and other state officials, sought to have Pennsylvania's mandatory retirement age of 70 for judges declared unconstitutional.

However, in a 29-page opinion, written by Justice Thomas Saylor, the court found in a 6-0 decision that the judges failed to cite a claim on which relief could be granted.

"Although certain societal circumstances may have changed since 1968, when the challenged provision was added to the Constitution -- and, indeed, some of the original justifications for mandatory retirement may not have reflected the most fair or even the most beneficial public policy -- the proper approach of conforming the Constitution more closely with petitioners' vision of how experiential changes should be taken into account is to pursue further amendment to the Pennsylvania Constitution," Justice Saylor wrote.

The case was remanded to a lower court to be dismissed with prejudice.

A similar case is pending in U.S. District Court but was put on hold while the state Supreme Court case was to be decided.

The mandatory retirement age was written into Pennsylvania law as part of the 1967-68 constitutional convention, and under the law can only be changed with legislation being passed in two consecutive sessions to be followed by a statewide referendum.

Bruce Ledewitz, a constitutional law professor at Duquesne University, said this was the expected outcome. The judges had argued that the "inherent rights of mankind" prohibits that state from telling them when to retire, Mr. Ledewitz said, adding:

"Nobody disputes natural law is part of our constitution, but if the people amend their own constitution, that's the ultimate standard of sovereignty and that cannot be trumped by the inherent rights of mankind."

The judges, who include Westmoreland County Common Pleas Senior Judge John Driscoll, initially filed their complaint with Commonwealth Court, alleging that the mandatory retirement age forced them to leave office prior to the expiration of their 10-year elected terms.

Among their arguments, the judges claimed that societal and demographic changes have increased longevity and lessened cognitive impairment in older people and that by allowing judges to work longer there would be less financial constraint on the state by having to pay out pensions for many years.

The petitioners also argued the mandatory retirement provision violates their right to equal protection under the law.

They were seeking a declaration that the mandatory retirement age was unenforceable, as well as a permanent injunction keeping the state from enforcing it.

But state officials argued that there is a remedy available if the people of Pennsylvania don't agree with the mandatory retirement age -- a constitutional amendment.

"A judge has no more right to serve beyond the time set by the Constitution than a governor has a right to seek a third term," commonwealth attorneys wrote in a brief.

The state Supreme Court agreed to take jurisdiction of the case and had oral argument last month.

In its opinion, the court acknowledged the potential for a conflict of interest in the case.

"As a preliminary matter, we acknowledge a degree of discomfort in presiding over the present matter, as, obviously, members of this court might benefit from a ruling favorable to petitioners," Justice Saylor wrote.

However, he went on to say that the court took on the matter because of the "long-standing rule of necessity."

As to the argument that there is less mental decline now at age 70, the court wrote that it doesn't matter to the case.

"Petitioners overlook that the wisdom of the policy behind legislative enactments is generally not the concern of the court," Justice Saylor wrote. "As for any demographic changes that have taken place since the amendment was adopted in 1968, moreover, they are irrelevant."

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Paula Reed Ward: pward@post-gazette.com or 412-263-2620.


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