Jessica M. Karmasek Jan. 31, 2013, 1:31pm

HARRISBURG, Pa. (Legal Newsline) -- Six Pennsylvania judges are challenging the state's mandatory retirement age, saying it is discriminatory and violates the U.S. Constitution.

Under the Pennsylvania Constitution, judges must retire at the end of the year in which they reach age 70. They may continue working as senior judges. However, as senior judges, they do not receive the same salary or benefits.

"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, contrary to federal law as set out in the Fourteenth Amendment to the United States Constitution," Senior Judge Benjamin Lerner and Judge John Herron, both of Philadelphia, and Northampton County Judge Leonard Zito wrote in their 19-page amended complaint last week.

"The mandatory retirement provision deprives Pennsylvania justices and judges of their property interest in their continued employment solely on the basis of age without conferring upon them a pre-termination opportunity to be heard or a post-termination opportunity to contest their ability to serve competently in the roles to which they were elected by the people of the Commonwealth."

Lerner was forced to retire in January last year. Herron will be forced to retire in January 2015. Zito will be forced to retire in January 2014.

All three filed their amended complaint in the U.S. District Court for the Middle District of Pennsylvania Jan. 25.

The named defendants in the suit include Gov. Tom Corbett, Secretary of State Carol Aichele, Treasurer Robert McCord and Zygmont Pines, court administrator.

In December, Corbett and Aichele had the suit -- originally filed in November in Pennsylvania's Commonwealth Court -- moved to the federal court.

However, another group of three judges -- Judges Joseph O'Keefe and Sandra Mazer-Moss, also of Philadelphia, and John Driscoll of Westmoreland County -- are still pursuing the claims in the state court.

Philadelphia attorney Alexander Bilus, who is representing the judges, told The Morning Call on Tuesday that splitting into two groups should help speed things up by avoiding arguments over which court is more appropriate.

Bilus told the newspaper that the judges also plan to file a petition to have the state Supreme Court consider the case.

The judges want the mandatory retirement provision nullified and declared invalid, and have the courts enjoin the defendants from enforcing the provision.

From Legal Newsline: Reach Jessica Karmasek by email at

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