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Judges fight Pennsylvania rule requiring retirement at age 70

| Friday, Nov. 16, 2012, 12:02 a.m.

After nearly two decades on the bench, Westmoreland County Juvenile Court Judge John J. Driscoll said he does not want to be forced out of a job simply because he celebrated his 70th birthday in February.

On Jan. 1, Driscoll will have to step aside because Pennsylvania judges are required to retire at the end of the year in which they turn 70. His forced departure will come three years before his 10-year term expires in 2016.

Driscoll will not go without a fight. He and five other judges have filed a lawsuit in Commonwealth Court seeking the right to decide on their own when to retire.

“I joined in this action because I really love my work,” Driscoll said on Thursday, a day after Philadelphia attorney Robert C. Heim filed the civil action in Harrisburg against state officials. “I feel very useful, and if this mandatory age provision is unconstitutional, I would not want to have my time and work terminated by something that is unconstitutional.”

The judges contend the mandatory retirement provision is age discrimination that violates their constitutional rights. The suit notes that by 2030, there will be more than 75 million Americans 65 and older. “As the population ages, the incidence of cognitive decline has decreased remarkably in recent years,” the suit asserts.

Joining Driscoll are Northampton County Judge Leonard N. Zito and Philadelphia Judges John W. Herron, Benjamin Lerner, Sandra Mazer Moss and Joseph D. O'Keefe. Lerner was forced to retire in January but works part time as a senior judge. The others are nearing 70 and will be forced to quit before the end of their 10-year terms.

Gov. Tom Corbett is named as the lead defendant.

“We have no comment on this pending litigation, but we expect that the Office of Attorney General will be responding by way of appropriate filings on behalf of the governor and the secretary of the commonwealth,” said Janet Kelley, a Corbett spokeswoman.

The judges want the court to toss the state constitution's mandatory retirement provision, which went into effect in 1969.

“The world has changed,” Heim said. “Seventy is not old. All of them feel, very strongly, their judging ability now is as good, or better, than it has ever been. They are experienced, and their maturity and judgment is still very strong, maybe even stronger, than when they were younger.”

Heim contends the mandatory retirement provision violates the 14th Amendment's equal protection and due process clauses, as well as Article 1 of the Pennsylvania Constitution.

Judges who are forced to quit because of their age can choose to continue working as senior judges, the lawsuit notes, but for less money and no benefits.

Annual salaries range from $169,541 for full-time Common Pleas judges to $195,309 for Supreme Court justices, according to Art Heinz, spokesman with the Administrative Office of Pennsylvania Courts. Senior judges in county courts are paid $522 per day when on the bench, but that pay, plus their pension, cannot exceed $169,541 annually, Heinz said.

In the lawsuit, Heim points out senior judges are not paid for work performed in chambers and are ineligible for sick days, vacation or life insurance benefits. Some senior judges were not paid for days worked when funding ran out, according to the lawsuit,

“There is no reasonable — or even rational — basis for paying senior judges less money for the same work than judges who have not yet been forced to retire,” Heim wrote in the lawsuit.

No other elected or appointed officials are required to retire based solely on age, the suit said.

“As a result, plaintiffs have been singled out by the Pennsylvania Constitution on the sole basis of age for different treatment from other officers and employees of the Commonwealth of Pennsylvania,” the lawsuit states.

Heim said elimination of the mandatory retirement provision will not risk allowing unfit judges to stay on the bench because other constitutional provisions provide for the removal of incapacitated judges.

None of the judges is seeking financial damages through the lawsuit, Heim said, but Lerner wants to be reinstated — without back pay.

“There's no seeking of compensation,” said Heim, who is representing the judges pro bono. “It's purely a declaration that this provision be set aside.”

Liz Zemba is a reporter for Trib Total Media. She can be reached at 412-601-2166 or

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