Jessica M. Karmasek Jun. 18, 2013, 2:00pm

HARRISBURG, Pa. (Legal Newsline) -- The Pennsylvania Supreme Court, in a unanimous ruling Monday, dismissed two lawsuits filed by judges challenging the state's mandatory retirement age.

All six members of the state's high court agreed that the judges should pursue an amendment to the state's constitution if they want to eliminate it.

"Although we have no doubt that many individual judges would be capable of serving with distinction beyond their mandatory retirement date -- and while the service of the present Petitioners and of many other Pennsylvania jurists reaching age 70 is honored and appreciated -- there are overall systemic goals that are rationally related to valid governmental and societal interests," Justice Thomas Saylor wrote in the court's 29-page opinion.

Currently, under the state's 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.

In Driscoll v. Corbett et al., Westmoreland County Court of Common Pleas Judge John J. Driscoll, Philadelphia Court of Common Pleas Senior Judge Sandra Mazer Moss and colleague Judge Joseph D. O'Keefe wanted the mandatory retirement provision nullified and declared invalid, and have the court enjoin the defendants from enforcing the provision.

In Tilson v. Corbett et al., Montgomery County Court Judge Arthur Tilson argued that the constitutional requirement is at odds with the Pennsylvania Constitution's guarantee of equal rights. He, too, wanted the provision nullified and declared invalid.

The named defendants in both cases were Gov. Tom Corbett, Court Administrator Zygmont A. Pines and Pennsylvania Secretary of State Carol T. Aichele.

The court -- which noted a "degree of discomfort" in presiding over the cases, as its members might benefit from a ruling in favor of the judges -- sided with Attorney General Kathleen Kane, who represented Corbett and the other defendants.

Kane's office argued that the judges' claims should be presented to the state legislature, which can initiate a remedy in the form of a new constitutional amendment.

"In summary, there is colorable merit to Petitioners' position that, theoretically at least, there is some possibility that a constitutional amendment might impinge on inherent, inalienable rights otherwise recognized in the Constitution itself. Nevertheless, we do not believe that the charter's framers regarded an immutable ability to continue in public service as a commissioned judge beyond 70 years of age as being within the scope of the inherent rights of mankind," Saylor wrote.

"Rather, in view of the people's indefeasible right to alter their government as they think proper through amending its basic charter, the mandatory retirement provision for judicial officers is subject to deferential, rational basis review under both equal protection and due process, and it satisfies that standard."

Saylor continued, "Therefore, 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."

The court remanded the cases to Commonwealth Court for dismissal and entry of judgment in favor of the state.

In light of the court's ruling, a separate challenge to the retirement provision in federal court now will move forward.

Judge John E. Jones III of the U.S. District Court for the Middle District of Pennsylvania in April stayed a federal case filed by Northampton County Judge Leonard Zito, Senior Judge Benjamin Lerner and Judge John Herron, both of Philadelphia.

The judges filed their suit in the federal court in January, arguing that the retirement provision "unfairly and arbitrarily" denies them of their employment, contrary to federal law as set out in the Fourteenth Amendment to the U.S. Constitution.

"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," the judges wrote in their 19-page amended complaint.

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.

The named defendants in the federal suit include Corbett, Pines and Aichele, and Treasurer Robert McCord.

From Legal Newsline: Reach Jessica Karmasek by email at

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