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Pennsylvania argues precedent set in judges' age-discrimination lawsuit

| Thursday, March 7, 2013, 12:01 a.m.

A federal lawsuit challenging a law that requires Pennsylvania judges to retire by age 70 should be thrown out because higher courts have previously rejected similar claims, according to a filing by attorneys for Gov. Tom Corbett.

Filed late last year, the age-discrimination lawsuit argues forced retirement at age 70 violates judges' constitutional rights to equal protection of the law and due process. Two actions are pending, one in U.S. District Court in Pittsburgh and the other before the state's Commonwealth Court.

The plaintiffs include Fayette County Senior Judge Gerald R. Solomon, whose case is in federal court, and Westmoreland County Senior Judge John Driscoll, who is listed on the case in Commonwealth Court. Both men were forced to retire from their full-time jobs in January but continue to work part time as senior judges.

Corbett, Commonwealth Secretary Carol Aichele and Zygmont Pines, Commonwealth Court administrator, are named as defendants.

In an 18-page brief, attorneys with the state Attorney General's Office asked that the federal case be dismissed because similar cases were rejected by the U.S. Supreme Court and the U.S. 3rd Circuit Court of Appeals.

One of the attorneys who is representing the judges, Robert C. Heim of Dechert, Price & Rhoads of Philadelphia, said on Wednesday that the filing by Corbett's attorneys was anticipated and “we will be replying in due course.”

The Supreme Court, in a 1991 case, rejected a challenge to a mandatory retirement provision for judges in Missouri, according to the attorneys. The court found that the law, which requires judges to retire by age 70, allows the state to meet a number of objectives, including giving others the chance to serve and making it unnecessary to try to determine whether an aging judge is still fit to serve.

For that reason, and others listed in the brief, the court found that the law did not violate equal protection, according to Corbett's attorneys.

The 3rd Circuit case, Malmed vs. Thornburgh, reversed a lower court's finding that Pennsylvania's mandatory retirement law for judges violated equal protection.

The court in 1980 rejected allegations that the law is based on an assumption that people older than 70 are unfit to serve, according to Corbett's attorneys.

Rather, the appellate court found that the law has a number of other objectives, the attorneys argue, including increasing the number of judges available to handle cases by bringing in younger, full-time jurists while allowing retired ones to serve part time. It allows the state to avoid “the unpleasantness of removing senile judges on an individual basis” and limits the amount of damage that could be “caused by a few senile judges.”

As long as any one of those “rational” reasons for mandatory retirement exists, the court found, the law does not violate equal protection.

As for due process, the attorneys note that the appellate court has rejected such challenges in other cases involving mandatory retirement for public employees, including a 2001 case involving an air traffic controller.

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

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