Pa. Supreme Court: Judges still have to retire at 70

| Tuesday, June 18, 2013, 12:01 a.m.

The state Supreme Court on Monday struck down a challenge to a constitutional measure requiring judges to retire at the end of the year in which they turn 70.

The court's 29-page opinion means Common Pleas Judge John Driscoll of Westmoreland County and Judge Gerald R. Solomon of Fayette County will remain in retirement. Driscoll and Solomon serve as senior judges, handling cases on a per-diem basis since leaving full-time posts on the bench.

They were among a group of eight senior judges from throughout Pennsylvania who filed two separate lawsuits to overturn the retirement provision contained in a 1968 amendment to the state Constitution.

By a 6-0 vote, the high court rejected the judges' argument that the measure was discriminatory.

The opinion by the Supreme Court noted a “degree of discomfort” in ruling in a case that could affect the court's own members.

Several members of the court are nearing their 70th birthdays, including Chief Justice Ronald Castille, who will turn 70 in March and will be required to step down by the end of 2014.

But “we do not believe the charter's framers regarded an immutable ability to continue in public service as a commissioned judge beyond 70 years of age as being within the scope of inherent rights of mankind,” Justice Thomas G. Saylor wrote.

The retired judges argued that the mandatory retirement age ignored the improved mental acuity of citizens who reach 70.

But the Supreme Court justices countered that — age concerns aside — they could find no reason to invalidate a constitutional amendment.

In a concurring opinion, Justice J. Michael Eakin wrote that 10-year terms served by judges and the mandatory retirement age ensure power is transferred between judges properly.

Driscoll, a former district attorney, was elected to the bench in 1994. He turned 70 in February 2012 and retired last year, three years before his second 10-year term was due to expire. He said he does not intend to pursue the challenge any further.

“This is an issue (in) which reasonable minds can differ,” Driscoll said. “I enjoy working and want to keep on working as a senior judge if I can.”

Since his retirement, Driscoll has continued to carry a full caseload in the family court division. As a senior judge, Driscoll is paid $534 a day. His daily pay and his retirement benefits cannot total more than the $173,000 salary of a sitting judge.

Westmoreland County voters last month nominated Republican Meagan Bilik DeFazio of North Huntingdon to replace Driscoll. Bilik DeFazio won the Republican and Democratic primaries and is all but certain to win the 10-year term in November.

“I'm glad the question has been resolved. Obviously, I wanted an answer, and I'm glad the confusion surrounding my election is cleared up now,” Bilik DeFazio said.

Solomon retired after he turned 70 last year. He declined comment on Monday, saying he had not seen the opinion.

Bruce Antkowiak, a law professor at St. Vincent College in Unity, said the ruling essentially ends the challenge.

“A federal constitutional claim (an appeal to a federal court) at this point is not going to work,” Antkowiak said.

Robert Heim, the lawyer for three of the judges who filed suit, said he would not appeal the ruling, but would continue the challenge to the mandatory retirement age in a pending federal lawsuit that makes similar claims under the federal Constitution.

The Associated Press contributed to this report. Rich Cholodofsky is a staff writer for Trib Total Media. He can be reached at 724-830-6293 or

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