This Case for the Ages should be dropped

Castille: No comment on whether he'll extend his tenure.
Castille: No comment on whether he'll extend his tenure.
Posted: April 15, 2013

FOLLOWING THE sizzling saga of Pennsylvania's ageless judges?

It's fun. It's hot. And it's on the move.

Legal briefs are due Monday. Oral argument is set for May 8.

Wait. You're unaware? Oh, allow me: It's classic Pennsylvania.

It's courts wasting time, the government wasting resources and the high and mighty judiciary entertaining itself - while maybe extending its reach and longevity.

In short, the state constitution requires judges to retire at 70; that provision is under challenge by a bunch of judges through state and federal lawsuits.

State Supreme Court Chief Justice Ron Castille has "no comment" on whether he'll recuse himself when his court hears the challenge.

He's 69. And running for another 10-year term. And his court reached down and plucked the case from a lower court to, you know, speed things along.

In other words, what we have is a suspiciously fast-moving case with motive and opportunity.

Why, and why now?

It's not as if there's constitutional ambiguity. Article V, Section 16(b) reads: "Justices, judges and justices of the peace shall be retired upon attaining the age of 70 years."

It's not as if the provision's new; it's been in place for 44 years.

But there are at least two answers to the two questions.

One answer is offered by the lead attorney in one of the lawsuits, Philly lawyer Bob Heim.

He argues, in part, that "societal and demographic changes" since the provision was adopted make it outdated.

In other words, people are living and working longer - 70 is the new 60 - so let's not be ageists.

Which certainly seems, you know, reasonable.

But another answer is suggested in op-ed pieces appearing around the state by Northampton County District Attorney John Morganelli, former president of the state D.A.s' association and the 2008 Democratic candidate for attorney general.

He writes of "speculation" that the litigation was encouraged by a member of the Supreme Court because of the ages of members of the Supreme Court.

There is Castille. And three of the other five sitting justices - Thomas Saylor, Max Baer (no relation) and Michael Eakin - turn 70 within the next five years.

In other words, there's no protection under the law like self-protection under the law.

Which certainly seems, you know, wrong.

So, recusal?

The chief, through a spokesman, says that because the case is before his court he has no comment. And, in fact, neither he nor any justice is required to recuse.

That's due to "the rule of necessity" (employed if no other court can hear a dispute) that allows, in this case, justices to hear cases directly impacting their jobs, income and pensions.

That rule gained further strength last week, when the retirement challenge in federal court was stayed for 90 days to allow the issue to proceed in state court.

Which gets us to the merits.

A key argument against forced retirement is that it violates basic rights, such as equal protection and the pursuit of happiness, incorporated in the state constitution.

Other public officials here don't have mandatory retirement, although I'd note other constitutional age restrictions: One must be 35 to be governor, 25 to be a state senator and 21 to be a House member.

And, yeah, OK, that's a little different. But there's also this: A majority of states (34) have mandatory judicial retirement, and past challenges to these policies failed in state and federal courts.

"The idea that a provision of the [Pennsylvania] constitution violates the [United States] Constitution makes no sense," says Bruce Ledewitz, a professor at Duquesne University School of Law in Pittsburgh and a constitutional expert. "It's silly."

But Ledewitz, long a critic of our high court, doesn't buy the conspiracy theory that the case is moving because justices are aging.

"I think they took it up to dismiss it," he says. "I'll be very surprised if they use this to rule in their own interest . . . that would be total corruption."

He's right. And I hope he's right about why the court took the case.

(Spoiler alert: The court does what it pleases, as in redistricting that only laughingly complies with the constitution; or in allowing the Legislature income and benefits to inflate way beyond a constitutional proscription in Article II, Section 8 that limitis members to salary and mileage "and no other compensation whatever.")

It's not that the retirement thing doesn't deserve consideration.

It's that constitutional questions should be addressed through debate about amending the constitution.

The issue has long-term impact for taxpayers and the state's 1,000-plus judges. It shouldn't be decided by judges of the moment who could benefit from their own ruling.

The case should be tossed.


Email: baerj@phillynews.com

Blog: philly.com/BaerGrowls

Columns: philly.com/JohnBaer

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