Earlier this week, Philadelphia Common Pleas court judges John W. Herron, Benjamin Lerner, Sandra Mazer Moss and Joseph D. O’Keefe along with Westmoreland County Judge John Driscoll and Northampton County Judge Leonard N. Zito filed suit claiming their Constitutional rights of equal protection and due process are being violated by a provision of the Pennsylvania Constitution mandating all Pennsylvania justices and judges retire at the end of the calendar year in which they turn 70. You can read the Complaint here.
“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,” says Counsel Robert C. Heim. “There is no good reason to think that judges who are 70 are not equally competent as judges who are younger.”
The lawsuit claims that the judges have been singled out based on age rather than ability and are treated differently than other state employees who are not subject to forced retirement; the state Constitution separately address the removal of incapacitated judges therefore the mandatory retirement provision forces capable judges to retire; the electorate is being deprived of service by judges based on age rather than ability to perform their duties; and that while judges over age 70 are able to work on “senior” status, they perform the same duties as their younger counterparts but are not similarly compensated and receive no paid sick days, vacation or life insurance benefits.
In 1990, the U.S. Supreme Court, in Gregory v. Ashcroft, upheld a similar requirement in Missouri after concluding that the threat of deterioration by age 70 warranted mandatory retirements.
While that decision has the potential to negatively influence the outcome of this case, the six judges and their counsel hope that advances in medicine, research on aging and evolving law on the 14th Amendment’s Equal Protection Clause will work to their benefit and their claim references scientific data indicating that cognitive impairment among older Americans has indeed decreased.
The suit points out that “to be a good judge requires good judgment, and judgment is a function of, inter alia, age and experience. Judicial performance thus frequently peaks late in life,” and argues that limitation on the fundamental right to work should be scrutinized to show state interest for mandatory retirement.
The outcome of this case could have national impact since thirty-three states and the District of Columbia impose age restrictions on judges. Heim says, “we expect what will happen is that new facts, changing times and evolving law will permit us to come to a successful conclusion.”