Pennsylvania Judges Claim Mandatory Retirement Violates Equal Protection Clause
November 14, 2012
Dechert News Release
Six Pennsylvania judges filed a lawsuit today in Harrisburg claiming that a provision of the Pennsylvania Constitution, which mandates all Pennsylvania justices and judges retire at the end of the calendar year in which they turn 70, violates their rights under the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution and under Article I of the Pennsylvania Constitution.
The lawsuit, filed by Robert C. Heim of Dechert LLP in the Commonwealth Court of Pennsylvania on behalf of Judge John Driscoll, Judge John W. Herron, Senior Judge Benjamin Lerner, Judge Sandra Mazer Moss, Judge Joseph D. O’Keefe and Judge Leonard N. Zito, names as defendants Governor Thomas W. Corbett Jr., Secretary of Pennsylvania Carol T. Aichele, Treasurer of Pennsylvania Robert M. McCord and Court Administrator Zygmont A. Pines.
“Some of our finest and most experienced legal minds are being denied unfairly the opportunity to serve the people of the Commonwealth of Pennsylvania, solely because of their age,” said Heim, who is serving as pro bono counsel for the judges. “In today’s world, there is no good reason to think that judges who are 70 are not equally competent as judges who are younger. “
The suit notes, among other things, that:
- These judges have been singled out by the Pennsylvania Constitution on the basis of age – not ability – and are treated differently than other officers and employees of the Commonwealth, who are not forced to retire due to age.
- To the extent the mandatory retirement provision is an attempt to prevent incapacitated judges from causing harm by continuing to act as judges, the Pennsylvania Constitution separately provides for the removal of incapacitated judges, and thus the mandatory retirement provision only serves to force capable judges to retire.
- The electorate unreasonably is deprived of the service of judges they have elected because of an arbitrary age classification, without regard to the judges’ ability to perform their judicial duties.
- Judges over the age of 70 are able to work on “senior” status, performing the same duties as judges under the age of 70, but they are not similarly compensated. There is no reasonable – or even rational – basis for paying senior judges less money for the same work than judges who have not been forced to retire. Nor is there any reason to elect and pay for new judges to serve in their place when they are fully competent to perform their judicial duties.
Heim, a nationally known trial lawyer, is a past Chancellor of the Philadelphia Bar Association and past President of the National Conference of Bar Presidents. He is an elected Fellow of the American College of Trial Lawyers and the International Academy of Trial Lawyers. He is a past Chair of the Advisory Committee to the Third Circuit Court of Appeals, and he is also past Chair of the Pennsylvania Continuing Legal Education Board. He served two successive three-year terms on the Federal Advisory Committee on Civil Rules and is currently a member of the Pennsylvania Civil Procedural Rules Committee. He also serves currently as a member of the ABA Standing Committee on the Federal Judiciary.
Read the details of the suit (PDF).