Even though the Pennsylvania Constitution requires judges to retire in the year that they turn 70, the provision violates fundamental rights, an attorney for judges argued before the state Supreme Court last week, reported The Legal Intelligencer.
Robert C. Heim, one of the attorneys representing judges seeking to strike down the mandatory retirement provision, told the high court that mandatory judicial retirement is an example of the will of the majority unconstitutionally infringing the rights of a minority.
Heim is arguing to abolish the age limit for judges in front of a panal that has four judges facing mandatory retirement in the next 6 years: Pennsylvania Chief Justice Ronald D. Castille and Justices Max Baer, J. Michael Eakin and Thomas G. Saylor.
Heim also argued that even if a majority of Pennsylvania voters adopts a constitutional provision, it could still be invalid if it violates another part of the constitution.
"Even though it's a majoritarian government, it also protects the few against the many," said Heim.
No court, including those in Pennsylvania, has ever held that one provision of a constitution could violate another provision of the constitution, argued J. Bart DeLone, a senior deputy attorney general.
"Such a holding would upend the most basic principles of democracy," DeLone said.
The plaintiffs are seeking to overturn precedent including Gondelman v. Commonwealth, in which challenges to mandatory retirement for judges were rejected.
Hangley said that the basis for the 1968 constitutional provision mandating that the judiciary retire in their 70th year implicates the "sensitive classification" of age for which even more scrutiny by the six sitting justices is necessary. Public policies regarding age is a sensitive area that must be looked at by the judiciary to see if there is a "closer relationship between the classification you make and the policy that you're trying to accomplish," Hangley said. Hangley argued that there was not such a "closer relationship" between classifying judges on the basis of age and the public policy rationales behind the constitutional amendment.
Justice Seamus McCaffery argued there is a growing incidence of dementia, that it is unfair to president judges, especially in smaller counties, to have to say to judges with deteriorating mental conditions that it is time for them to step down, and that it is unfair to litigants whose cases are heard by impaired judges.
The Supreme Court heard the claims of Montgomery County Court of Common Pleas Judge Arthur Tilson in one lawsuit, and Philadelphia Court of Common Pleas Senior Judge Sandra Mazer Moss, who is team leader of the judicial team handling 2011 cases, 2009 cases and cases older than 2009; Philadelphia Court of Common Pleas Judge Joseph D. O'Keefe, administrative judge of the Orphans' Court; and Westmoreland County Court of Common Pleas Judge John J. Driscoll, administrative judge of the juvenile court, in the other case.
There also are lawsuits in federal court as well as one in Commonwealth Court challenging the mandatory retirement provision.
There also is legislation pending in the Senate that would put forth a constitutional amendment to eliminate mandatory retirement entirely, and there is legislation pending in the House of Representatives that would lift the mandatory retirement age up to 75.
To read more: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202599217212&kw=Pa.%20Justices%20Hear%20Challenges%20to%20Mandatory%20Judicial%20Retirement&et=editorial&bu=The%20Legal%20Intelligencer&cn=20130509&src=EMC-Email&pt=AM%20Legal%20Alert&slreturn=20130409094434
Michael Gargiulo Case, Pretrial Hearing 38
5 weeks ago