ABA Journal



Six Pennsylvania Judges Challenge Constitutionality of Mandated Retirement at Age 70

Nov 15, 2012, 01:27 pm CST


This issue has already been decided in Pennsylvania. The suit should be dismissed.

By Yankee on 2012 11 15, 2:08 pm CST

Summary judgment coming up in three . . . two . . .one . . .

By RecentGrad on 2012 11 15, 2:17 pm CST

I disagree to force someone to retire because they are a certain age. So, because someone is 70 years old you should just put them out to pasture? If they do not have any inclination of Alzheimer's disease, Dementia or a serious illness..why should they be forced to retire? As Americans we are living longer, taking better care of ourselves, and looking great! The ones that are making these rules have not reached the age they are imposing on others. They could be hanging a rope around their own necks in the future.

By Yolanda on 2012 11 15, 2:19 pm CST

Get out of the way, fogies. Take Tom Paxton's advice (borrowed from Richard Lamb), in "Come Grow Old With Me In Colorado."

By Pushkin on 2012 11 15, 2:34 pm CST

@3 It should be noted that there is an opportunity for a judge in the Commonwealth of Pennsylvania to obtain "Senior Judge" status - - - provided certain requirements are met, including going through a formal application/approval process - - - and continue to serve in a judicial capacity until the age of seventy-eight. Put another way, the rule is not as arbitrary and heartless as it seems on its face, while at the same time acknowledging that a person's capabilities decline over time.

See, Title 201 Pa. Code Rule 701.

By Yankee on 2012 11 15, 4:09 pm CST

In my opinion, this isn't really about age discrimination. It's about making sure that one judge's politics (whether left or right) can only have limited impact. Something I wish we could implement at the federal level...

By Another Andy on 2012 11 15, 4:16 pm CST

@6 You're completely wrong, Andy. This case has absolutely nothing to do with a "judge's politics" and everything to do with Article V, Section 16 of the Constitution of the Commonwealth of Pennsylvania that applies to judges across the Commonwealth, including the minor judiciary. This case has everything to recognizing the physical and mental limitations associated with age.

Compensation and Retirement of Justices, Judges and Justices of the Peace
Section 16.
(a) Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.

(b) Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years. Former and retired justices, judges and justices of the peace shall receive such compensation as shall be provided by law. No compensation shall be paid to any justice, judge or justice of the peace who is suspended or removed from office under section eighteen of this article or under Article VI.

(c) A former or retired justice or judge may, with his consent, be assigned by the Supreme Court on temporary judicial service as may be prescribed by rule of the Supreme Court.

By Yankee on 2012 11 15, 4:45 pm CST

@7 - I disagree that that's the only possible motivating factor here.

By Another Andy on 2012 11 15, 4:47 pm CST

Sabo v. Casey, 757 F.Supp. 587, (E.D Pa.,1991)

Who knows whether this will be followed....

still, in Pennsylvania we still elect judges. IMHO, the problem is not with electing appellate level judges, it's the trial level judges that are problematic

The voters get to choose from the hacks selected by the party for a seat on an appellate bench that interprets the law and generally implements policy as opposed to determining facts.

There appear to be two types of lawyers trying to "ascend" to the trial level bench:

- Young lawyers (with less than 20 years of experience) who are prosecutors, young partners of law firms trying to get rid of them, or young lawyers seeking a pay raise or,

- Experienced lawyers who have had a distinguished career looking to end that career on the bench.

Generally, but not always, the experienced lawyers make the best judges. They tend to be patient, thoughtful and most resistant to "black robe fever." It is my impression that the younger lawyers seem to be judges of lower quality always trying to prove that they are the smartest lawyers in the room.

We have a really bad system in Pennsylvania. We went to an election system as the old "merit appointment" was too corrupt.

By pa atty on 2012 11 15, 4:50 pm CST

@8 "I disagree . . "

You must be an expert on Article V, Section 16 of the Pennsylvania Constitution. Wow!

By Yankee on 2012 11 15, 6:00 pm CST

Not at all. I only disagree with you that there's only one possible motivation behind it.

By Another Andy on 2012 11 15, 6:01 pm CST

There should be no mandatory retirement age for any job, physical or intellectual. There are lazy or stupid (or both) people of young and old ages on the bench who shouldn't be there.

With respect to cognitive decline, nowadays, as never before (for what reasons, whether it's environmental pollution, chemicalization of food, or whatever, is a different topic) there are people in their 30s and 40s who are getting Alzheimer's! But "dementia praecox" has always been recognized legally.

Some people are in their 90s and never become cognitively impaired and can meet physical performance standards (obviously not for the NFL but there have been some comparatively "old guys" there just as there have been in the Olympics such as the Olympic discus thrower, Al Oerter, and "old lady" swimming champ Dara Torres the 12-time medalist in 5 Olympic games...I could go on and on). Regarding physical jobs, there was a waiter at Horn & Hardart who started there at the age of 17--his first and only job--and all customers and employees agreed that he was the best waiter there in every respect, including speed, nor had he ever taken a day of sick leave!

If merit were the sole consideration for hiring and job retention there would be justice for all.

By CHRISTIE WAGNER on 2012 11 15, 7:31 pm CST

TO #9 pa atty who wrote on Nov 15, 2012 10:50 AM CST that " the problem is not with electing appellate level judges, it’s the trial level judges that are problematic The voters get to choose from the hacks selected by the party for a seat on an appellate bench..." I agree. In my county none of the judges up for election cared enough about the voters to publicize a platform, ergo I refused to vote for any of them. Shame on their lack of caring and complacency. On top of that most ran unopposed. Since I was a teenager I've maintained that 1 is not a choice, 2 is a forced choice and 3 is the beginning of a choice.

By CHRISTIE WAGNER on 2012 11 15, 7:43 pm CST

Wow! Nobody thinks that 70 is a good time to stop working? I understand the Constitutional issues and all, and while I appreciate that these people enjoy their job, maybe they could find things in retirement that they like too? Or volunteer in a legal clinic or mediation/arbitration. A mandatory retirement age is intended to free spots up for the next generation. Someone 70 years old with a law degree should have enough money to retire on.

By mmm on 2012 11 15, 9:58 pm CST

Ohio had a judge with black robe syndrome who need to die in order to remove him from the bench.

He died and was gone at age 49 .

By Heh Heh @ Columbus OH 43209 on 2012 11 16, 2:39 am CST

I feel bad for people who work past 65. Life is too short to spend working. Then again, if you have no life outside work, I can see why you go to the office every day. I love law but I am already looking forward to my retirment where I can travel the world, be with my family, and do the things I want to do when I want to do it.

We only live once people. No one cares if you are a lawyer at 70 except your ego.

By tim17 on 2012 11 20, 2:01 pm CST

This is a government position, there should never be a perception that any individual has an absolute or perpetual right to it.

I don't know the particulars of PA law, but the U.S. Constitution sets minimum ages to vote, or be elected to federal positions. How can one argue that the same Constitution that sets arbitrary minimum ages must prohibit setting a maximum age ?

By bringing this lawsuit in the face of precedent, these state judges may have shown how sound their legal reasoning is.

By Steve on 2012 11 22, 12:55 pm CST

Add a Comment

We welcome your comments, but please adhere to our comment policy.

Commenting is not available in this channel entry.