Casting the Vote: Raising the Constitutional Mandatory Retirement Age for Pennsylvania Judges

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by: Jamie Inferrera, Staff Writer

Imagine being told that you must retire from your job at the age of 70. No pleading a case to continue working; no exceptions. This is a reality for the over 1,000 judges serving within Pennsylvania’s judicial system.

Currently, thirty-three states and the District of Columbia have a mandatory retirement age for state judges. Pennsylvania’s provision is located in Article V, Section 16 of the Pennsylvania Constitution. Conversely, the federal court system does not impose a mandatory retirement age on its jurists. Many well-regarded federal jurists served on the bench into their 80s, including, Justice John Marshall (the longest serving Chief Justice), Justice Oliver Wendell Holmes, Justice Thurgood Marshall, and Judge Learned Hand.

During the state Constitutional Convention of 1967-68, the delegates debated the retirement age of judges extensively and a variety of options were considered. The delegates ultimately decided that judges should retire when they attain the age of 70 and the question was presented to the voters of Pennsylvania in April of 1968, which was subsequently approved. The same provision of the Pennsylvania Constitution was also amended in 2001, specifying that judges must retire by the end of the calendar year when they turn 70.

[pullquote]  “The delegates to the Constitutional Convention were also cognizant that the age may have to be reevaluated and changed at some point,” Ken Gormley, Dean of Duquesne University School of Law.[/pullquote]

In the Courts

The time to reevaluate the judicial retirement age may be now, some 45 years after the amendment was ratified. In 2012, several groups of Pennsylvania judges filed lawsuits in state and federal courts claiming that the mandatory retirement provision in the Pennsylvania Constitution was in violation of the United States Constitution’s equal protection clause and due process clause.

“The courts have tested this issue a number of times,” Dean Gormley noted.

In a June 2013 opinion, the Pennsylvania Supreme Court unanimously decided that this is an issue for the people’s body of government to decide. And rightfully so, said Bruce Ledewitz, a constitutional law professor at Duquesne University School of Law. “This was not a strong legal challenge,” Professor Ledewitz said.

Ironically, the Pennsylvania Supreme Court decided on an issue that had the potential to impact each justice proceeding over the hearings, especially Chief Justice Ron Castille who is facing retention next month. If Chief Justice Castille is retained in November, he will only be able to serve on the high court through the end of 2014.

The state Supreme Court asserted its “King’s Bench power” to consider the constitutional challenge to the mandatory retirement age in an expedited manner. This power allows the high court to assert jurisdiction to address an issue of “immediate public importance.” Professor Ledewitz noted that the Pennsylvania Supreme Court also utilized the “rule of necessity” over the case. The rule of necessity is typically asserted when one or multiple justices may have a conflict of interest in a particular case, but the court is the only judicial body that has jurisdiction over the particular claim. The Pennsylvania Supreme Court also flexed the rule of necessity when it ruled to keep in place the controversial midnight pay raise of 2005.

Legislative Action

Representative Kate Harper (R-Montgomery Co.) has introduced House Bill 79, a constitutional amendment to raise the mandatory retirement age of judges from 70 to 75. In order to amend the Pennsylvania Constitution through the legislative process, a bill must successfully pass through both chambers of the legislature by a simple majority during two consecutive sessions, and then the question must be placed on the ballot for voter approval.

Dean Gormley noted that the Pennsylvania Constitution is easier to amend than the U.S. Constitution. “This is not a difficult hurdle if the Legislature decides this is the best course,” Dean Gormley said.

House Bill 79 passed the House of Representatives by a vote of 157-44. In mid-October, the legislation passed the Senate by a vote of 44-6. Pursuant to constitutional requirements, the proposed amendment must now be published in at least two newspapers in every county across the Commonwealth. The legislation must also pass successfully during the next legislative session, which will commence in January 2015. Theoretically, the earliest the proposed amendment could be placed on the ballot is November 2015.

“It is up to the people of Pennsylvania,” Professor Ledewitz said.


Here are some points in favor of raising the mandatory judicial retirement age to 75 (“Yay”), and some points against raising the retirement age (“Nay”):


*The average life expectancy has increased from 70 (1968) to 78 (2013).

*Extending the retirement age to 75 would provide more opportunities for women to serve on the bench, as the average life expectancy of women in the United States has reached over 80 years of age.

*Examples of many federal judges who perform well past age 70.

*Potential cost savings (especially in regard to state pensions).


*Would have less open positions on the bench for younger lawyers and consequently, less turnover on the bench.

*There are other positions for jurists after serving on the bench.

*Declining mental and physical capacity of aging jurists.

*Uncertain financial impacts of overhauling the current judicial system.


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