John Baer: Should Pa. judges have to retire at 70?

Posted: November 20, 2012

A LAWSUIT challenging mandatory retirement of Pennsylvania judges at age 70 raises interesting issues - legal, social and political.

It was filed last week in Commonwealth Court by Philly big-dog trial lawyer Bob Heim, of Dechert LLC, on behalf of six judges, four from the city.

It could affect the 1,000-plus judges statewide, and potentially judges in other states.

You'd think any judge hearing the case might find it appealing. (Get it? Appealing?)

And if you're thinking, 'Wait, wouldn't any judge hearing the case be in conflict because he or she could financially benefit from a successful challenge?' think again.

Something called "the rule of necessity" allows judges to sit on cases of apparent self-interest if such cases could not otherwise be heard.

Hey, ya gotta have a trapdoor.

The lawsuit argues, among other things, that the state Constitution unjustly targets judges because all other state employees, elected and appointed officials do not have to retire at 70.

It also says the mandate ignores "ability," is contrary to equal-protection rights under the 14th Amendment to the U.S. Constitution and is redundant because the state Constitution provides (in Article V, Section 18) for removal of "mentally or physically disabled" judges.

In other words, we're already protected from drooling, addled jurists - despite any experiences you might have had.

The issue comes as society ages and works longer, and in a state among the nation's oldest; only Florida, West Virginia and Maine have slightly higher percentages of residents 65 and older.

For the politically suspicious, it also comes as state Supreme Court Chief Justice Ron Castille decides whether to run in a 10-year retention election next year, when he turns 69.

And, for those who believe there are politics on the high court, it causes a certain amount of apoplexy among younger justices looking to move up the chain.

(Legislative efforts in the session now ending failed to move a constitutional amendment raising the age.)

The issue has an interesting history.

Most states (34) have mandatory retirement, ranging from age 70 to 75, according to data compiled last month by the National Center for State Courts.

In 2011, voters in Ohio roundly defeated a ballot measure raising retirement for state judges from 70 to 75.

And past challenges to mandatory retirement were shot down by the U.S. Supreme Court (in 1991) and our state Supreme Court (in 1989).

Heim's suit points to "societal and demographic changes" since those rulings, and claims that such data offer reasons to overturn precedents.

But a constitutional-law expert, Penn Law School's Seth Kreimer, says he's "skeptical" that the U.S. Supreme Court would overrule itself on that basis, or that new demographics could change findings in the state case, which basically asserts that states can determine rules of their government.

"So, as a legal matter, this doesn't look like it should be a winner," Kreimer says.

Ah, but this is Pennsylvania, where "legal matters" are matters of broad interpretation: see legislative districts, illicit pay raises, legislation that becomes law without meeting constitutional requirements, etc.

Still, there are arguments that favor raising the age.

Clearly there are capable older judges. We currently pay 266 "senior judges" $522 a day to help alleviate heavy court dockets.

(One, though not yet 70, is McKean County Senior Judge John Cleland, who won praise for deft handling of the Jerry Sandusky trial.)

And hiking the age for regular judges might save money, because we replace retirees with new judges, then pay senior jurists per-diems, pensions and health benefits.

I suspect that this case will move right along - which, in political terms, means before Chief Castille would stand for retention.

Philly judges suing are John Herron, Sandra Mazer Moss, Joseph O'Keefe and Senior Judge Ben Lerner. Defendants include Gov. Corbett and other state and judicial officials.

It'll be interesting to see how judges rule on their own futures.

Email: baerj@phillynews.com

Blog: philly.com/BaerGrowls

Columns: philly.com/JohnBaer

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