The Pennsylvania State Supreme Court has ruled an attempt to overturn the mandatory retirement age for state judges has no basis.
The lawsuit brought by Commonwealth Court Senior Judge Rochelle S. Friedman and Bucks County Judge Alan M. Rubenstein argued that a 1968 state constitutional amendment requiring Pennsylvania judges to retire at age 70 amounts to age discrimination.
The decision closely echoes the court’s rulings in June on similar cases disputing the retirement provision, in which a group of judges claimed that the amendment violates their right to equal protection under the law.
In one 6-0 decision from last month, the commonwealth’s highest court said altering the state constitution again is the only way to nix the retirement policy.
“Although certain societal circumstances may have changed since 1968, when the challenged provision was added to the constitution,” Justice Thomas Saylor wrote, “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 judges’ lawsuit argued, among other things, that since people today live longer and suffer less age-related cognitive difficulty than they did in 1968, they ought to be free to work longer if they wish.
Ken Gormley, dean of the Duquesne University School of Law, said aging judges probably have a better chance if they lobby for a change to the state constitution anyway.
“I think the constitutional amendment process has a lot of good potential here,” said Gormley. “Ultimately, there’s strong support in the Legislature — and in the public I think — to make some kind of adjustment to this.”
Gormley envisions a constitutional amendment that would raise the retirement age to 75 in an effort to make sure there’s still room for young lawyers aspiring to the bench, and to avoid the case-by-case review to determine whether older judges remain fit to serve past a certain age.
Change may come too late to help challenger
But Montgomery County Common Pleas Court Judge Arthur Tilson, whose challenge to the age mandate was among those discounted by the state’s high court last month, says that process will take too long to let him keep his job.
“There’s no guarantee it would pass this year, and if it didn’t pass, it could pass next year, but then it would have to pass again some time in the next two years,” Tilson reasoned, ticking off lost time. “And I will have to retire at the end of this year. That’s the end of my traditional career.”
Like all changes to the state constitution, altering the mandatory retirement age would have to pass the Legislature twice in back-to-back sessions and then would go to a statewide vote before it became law.
In last month’s decision, the court also noted a potential conflict of interest for judges to change their own mandatory retirement age.
“There obviously is discrimination in the constitutional provision at issue,” wrote Chief Justice Ronald Castille in a concurring decision this week.
Ultimately, though, Castile concluded the amendment cannot be overturned in the courts.
If Castille wins retention in November, he will also have to yield his seat in 2014.