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Report: Pa. AG against special master in third mandatory retirement suit

By Jessica M. Karmasek | May 24, 2013

HARRISBURG, Pa. (Legal Newsline) -- Pennsylvania Attorney General Kathleen Kane's office reportedly is opposing a request to appoint a special master in a third lawsuit filed over the state's mandatory retirement age.

The Legal Intelligencer reported Friday that Kane's office contends the case involves "purely legal issues" and the "proper" interpretation of the state constitution.

In a one-page, per curiam order May 10, the Pennsylvania Supreme Court said it will assume plenary jurisdiction over Friedman v. Corbett, explaining that there is "substantial overlap" among the issues presented in it and two other cases that have already been accepted by it for review, Driscoll v. Corbett et al. and Tilson v. Corbett et al.

Bucks County Court of Common Pleas Judge Alan Rubenstein, along with Commonwealth Court Senior Judge Rochelle Friedman, argue that their lawsuit is different than Driscoll and Tilson.

Their case also includes claims by qualified voters who contend that the state's mandatory retirement age deprived them of the efficacy of their votes.

For example, in Friedman's case, her 10-year term was cut short by three years.

Friedman also challenges a constitutional amendment that changed the mandatory retirement from a judge's actual 70th birthday, in turn allowing some judges to serve longer than others.

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.

"Petitioners here intend and desire to present evidence from judges, law professors, sociologists, court administrators and others to support their claim that the mandatory retirement of justices and judges at age 70 is irrational, arbitrary, discriminatory and violates the indefeasible natural rights," the judges' attorney, Thomas Groshens of Philadelphia law firm Sprague & Sprague, wrote in an application for relief filed with the court May 14.

"Specifically, petitioners seek to introduce evidence of demographic trends establishing that Pennsylvania citizens 65 and older are living longer, working longer and remaining productive substantially longer than their 1968 counterparts."

Groshens, in an email Thursday, noted that his clients are not challenging the court's assumption of jurisdiction.

Rather, they are asking the court to appoint a special master, under its jurisdiction, to hear evidence and create a record to support the "irrationality" of mandatory retirement, he said.

"Petitioners were deprived of their procedural and substantive due process rights to identify the issues that distinguish their claims from those raised in the Driscoll and Tilson appeals," Groshens wrote in the 13-page application.

"Petitioners respectfully contend that despite the overlap of certain issues between this action and the Driscoll and Tilson appeals, the Petitioners here raise substantially different issues that should only be decided following an evidentiary hearing and based on a fully developed record."

In Driscoll, 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 want the mandatory retirement provision nullified and declared invalid, and have the court enjoin the defendants from enforcing the provision.

In Tilson, Montgomery County Court Judge Arthur Tilson argues that the constitutional requirement is at odds with the Pennsylvania Constitution's guarantee of equal rights.

He, too, wants the provision nullified and declared invalid.

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

Friedman also involves Philadelphia Court of Common Pleas Senior Judge Eugene Edward J. Maier, and Philadelphia Court of Common Pleas Judge William J. Manfredi has filed an application to intervene.

The named defendants include Corbett, Pines, Aichele and State Treasurer Robert M. McCord.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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