AG Brief Supporting Mandatory Retirement Provision in Pa Constitution

8/23/2019 AG Brief Supporting Mandatory Retirement Provision in Pa Constitution

http://slidepdf.com/reader/full/ag-brief-supporting-mandatory-retirement-provision-in-pa-constitution 1/33

Received 04/29/2013 Supreme Court Middle Distric

Filed 04/29/2013 Supreme Court Middle Distric

IN THE SUPREME COURT OF PENNSYLVANIA

Nos. 19 & 20 MAP 2013

SENIOR JUDGE JOHN DRISCOLL, et a l . ,

Appellant

v.

in No. 19 MAP 2013

THOMASW. CORBETT, JR., et a l . ,

Appellee

******************************************

JUDGE ARTHUR TILLSON,

Appellant

v.

in No. 20 MAP 2013

THOMASW. CORBETT, JR., et a l . ,

Appellee

BRIEF FOR RESPONDENTS

ONTHE GRANT OF EXTRAORDINARY JURISDICTION FROM

COMMONWEALTHCOURT NOS. 43 &48 M.D. 2013

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

Phone: (717) 783-3226

FAX: (717) 772-4526

DATE: April 29, 2013

KATHLEEN G. KANE

At torney General

BY: . BART DELONE

Sen ior DputyAt torney General

JOHN G. KNORR, III

Ch iefDputyAt torney General

Ch ief Appel lateL t iga t ion Sec t ion



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIESiiiSTATEMENT OF JURISDICTION

1STATEMENT OF STANDARD AND SCOPE OF REVIEW2ORDER IN QUESTION3STATEMENT OF THE QUESTION INVOLVED4STATEMENT OF THE CASE5

Procedural History .5Statement of Facts

6SUMMARYOF ARGUMENT8ARGUMENT10I . he Issue Presented By The Petitioners I s Justiciable, Although

Meritless10I I . here Is No “Super-Constitution”; As The Court Has Correctly Held,

The Idea That One Part Of The Constitution Can “Violate” Another I s

Absurd

11I I I . he Retirement Provision Does Not Violate Equal Protection. 15

A. ge-based classifications are subject only to rational basis

review .15B. s this Court and others have held, th e judicial retirement

provision serves several legitimate state interests16

C. etitioners’ policy arguments should be directed elsewhere 21IV. he Petitioners Have No Property Interest To Which Due Process

Might Attach.23CONCLUSION26

i



CERTIFICATE OF SERVICE27

i i



TABLE OF AUTHORITIES

Cases

Page

Adler v MnteforeHsp Ass ’n ,

453 Pa. 60, 311 A.2d 634 (1973)

24Arms trongv Kng

281 Pa. 207, 126 A. 263 (1924)11Bergdol l v Kne

557 Pa. 72, 731 A.2d 1261 (1999)14Comm v Alber t ,

563 Pa. 133, 758 A.2d 1149 (2000)

5, 16

Comm v Omar ,

602 Pa. 595, 981 A.2d 179 (2009)22Comm v Tharp

562 Pa. 231, 562 A.2d 1251 (2000)12Erfer v Commonweal th ,

568 Pa. 128, 794 A.2d 325 (2002)15Fr i ngv Kphar t ,

466 Pa . 560, 353 A.2d 833 (1976)

24Gondelman v Comm ,

520 Pa . 451, 554 A.2d 896 (1989)passim

Gregory v Ashcrof,

501 U.S. 452 (1991)19In re Sout ,

521 Pa. 571, 559 A.2d 489 (1989)

12James v SEPTA

505 Pa. 137, 477 A.2 1302 (1984)15i i i



Jubel i rer v Rendel l ,

598 Pa. 16, 953 A.2d 514 (2008)13Lgon ier Tavern, Inc . v WCAB (Wlker) ,

552 Pa. 237, 714 A.2d 1008 (1998)16Mlmedv Thornburgh ,

621 F.2d 565 (3d. Cir. 1980)

19Mss . Bd ofRet i rement v Mrg a ,

427 U.S. 307 (1976)16Ml lowv Pzzi ngr i l l i ,

800 A.2d 350 (Pa.Cmwlth. 2002)14Mrrel l v Char t iers Yal leySchool Ds tr i c t ,

579 Pa. 97, 855 A.2d 713 (2004)

23Nxon v Commonweal th ,

576 Pa . 385, 401, 839 A.2d 277 (2003)16Pennsylvan ia Game Commi ss ion v Mr i ch ,

542 Pa. 26 , 666 A.2d 253 (1995)23Pr i son Soc iety ofPennsylvan ia v Comm ,

565 Pa. 526, 778 A.2d 971 (2001)14R v Dpt . ofPub l i c Wlfare

535 Pa. 440, 636 A.2d 142 (1993)

23Seeboldv Pr i son Hal th Serv i ces ,

- Pa. - , 57 A.3d 1232 (2012)2Sander v Kl ley

433 Pa. 406, 250 A.2d 474 (1969) 1, 14

S i lp v Com ,

588 Pa. 539, 905 A.2d 918 (2006)

17Yance v Bradley

440 U.S. 93 (1979)16iv



Statutes

42 Pa.C.S. § 7261,2Constitutional Provisions

PA. CONST., Art. I , § 1 0PA. CONST., Art. I , § 2 3PA. CONST., Art. I , § 25 2, 13

PA. CONST., Art. I , § 26 0PA. CONST., Art. I , § 6

2

PA. CONST., Art. IV, § 3 5PA. CONST., Art. V, § 16(b) assimPA. CONST., Art. V, § 16(c) , 17

Other Authorities

Dba tes ofthePennsylvan ia Cons t i tut ional Convent ion : Journal ofthe

Conven t ion , (1968) 8, 22DECLARATION OF INDEPENDENCE (1776)13JUDICIARY SUBCOMMITTEE OF THE PREPARATORY COMMITTEE FOR THE

PENNSYLVANIA CONSTITUTIONAL CONVENTION,

ReferenceMnual N 5 (1968) 7, 18

v



STATEMENTOF JURISDICTION

This matter comes before the Court pursuant to the Court’s orders of March

28, 2013, granting petitioners’ applications for extraordinary r e l i e f . This Court h as

jurisdiction pursuant to 42 Pa.C.S. § 726.

1



STATEMENTOF STANDARD AND SCOPE OF REVIEW

Scope ofreview Pursuant to 42 Pa.C.S. § 726, the Court exercises plenary

jurisdiction over this matter.

Sandardofreview This matt er presents issues of law over which th e Court

exercises plenary review. Eg , Seeboldv Pr i son Hal th Serv i ces , - Pa. - , 57 A.3d

1232, 1243 (2012).

2



ORDERIN QUESTION

The Court having asserted extraordinary jurisdiction over this case at an

early stage, there i s no order to review.

3



STATEMENTOF THE QUESTION INVOLVED

Whether th e judicial retirement provision contained in Article V, § 16(b) of

t h e Constitut ion of Pennsylvania, violates that same Constitution?

4



STATEMENTOF THE CASE

In these consolidated cases, a group of judges challenges the validity of the

judicial retirement provision contained in Article V, § 16(b) of the Constitution of

Pennsylvania. The petitioners are Judges John Driscoll, Joseph D. O’Keefe, Sandra

Mazer Moss and Arthur Tilson; th e respondents are the Governor and the Secretary

of theCommonwealth.1

Petitioners claim that the judicial retirement provision

violates other provisions of the Pennsylvania Constitution, and seek injunctive and

declaratory relief against i t s enforcement.

Procedural History.

The Di sco l l petitioners filed their complaint in Commonwealth Court on

January 28, 2013; and Judge Tilson followed suit on January 31. On February 6 , a l l

of the petitioners filed applications for extraordinary relief asking this Court to

assume jurisdiction. On March 28, the Court granted the applications, ordered

expedited briefing and placed the cases on the May 2013 argument l i s t . In the

meantime, th e respondents had interposed preliminary objections in the nature of a

demurrer, which remained outstanding when the Court assumed jurisdiction.

1 The Court Administrator was also named as a defendant in both cases, but

was dismissed by stipulation in the T lson case on April 13, 2013. As of t h i s

writing, th e parties have agreed to f i l e a similar stipulation in the Di s co l l case.

5



Statement of Facts

In 1968, th e people of Pennsylvania replaced Article V of their Constitution,

governing the judiciary. Among the provisions of the new Article V was Section

16(b), which provided in relevant part that “[j]ustices, judges and justices of the

peace shall be retired upon a t ta i n i ng the age of 70 years.” (Emphasis added.) In

2001, this provision was amended to provide that “[j]ustices, judges and justices of

the peace shall be retired on the las t day ofthe calendar year in which they attain

the age of 70 years.” (Emphasis added.)

Aretired or former judge may be assigned by the state Supreme Court to

serve temporarily as a senior judge. PA. CONST., Art. V, § 16(c). Senior judges are

paid a per diem for their services, but do not receive additional benefits available to

commissioned judges such as paid leave and l i f e insurance, and do not accumulate

additional pension credits. Di s co l l Complaint, ¶¶ 26-27; T lson Complaint ¶¶ 28-

29.

Judge Driscoll was appointed to the Court of Common Pleas of

Westmoreland County in 1994, was elected to a ten-year term in 1995 and was

retained in 2005.2

In 2012, he turned 70 and was retired at the end of that year.

2 Judge Driscoll, like the other petitioners, alleges that, notwithstanding his

impending retirement, he was retained for a ten-year term ending in 2016. Di s co l l

Complaint, ¶ 4. As we explain below, see i nfa at 23 , this i s incorrect as a matter of

law; the terms of Judge Driscoll and the other petitioners end with their respective

retirements.

6



Di s co l l Complaint, ¶ 4 . According to th e website of the Unified Judicial System,

he now serves as a senior judge.

Judge O’Keefe i s the Administrative Judge of the Orphans’ Court Division

in the First Judicial District. He was elected in 1983 to a ten-year term and was

retained in 1993 and 2003. He intends to stand for retention again in November of

this year, and alleges that he will “assuredly” be retained. He will turn 70 in 2014

and will be retired a t the end of that year. Di s co l l Complaint , ¶ 5 .

Judge Mazer Moss was elected to the Court of Common Pleas of the First

Judicial District in 1983. She was retained in 1993 and 2003. In 2012, she turned

70 and was retired at the end of that year. Di s co l l Complaint, ¶ 6 . According to

the website of the Unified Judicial System, she now serves as a senior judge.

Judge Tilson i s a judge on the Court of Common Pleas of Montgomery

County. He was appointed in 2000, elected in 2001 to a ten-year term, and retained

in 2011. He will turn 70 in 2013 and will be retired at the end of that year. T lson

Complaint, ¶ 4 .

7



SUMMARYOF ARGUMENT

1 . Petitioners’ argument – that the judicial retirement provision in the state

constitution “violates” the constitution of which i t i s a part – i s justiciable but

meritless. I t depends on two propositions: 1) that Article I of the Pennsylvania

Constitution i s a “super-constitution” that can never be changed and to which a l l

other constitutional provisions must conform; and 2) that Article V’s judicial

retirement provision i s inconsistent with Article I’s equal protection and due

process provisions. As the Court has already held, neither proposition i s true.

2. There i s no “super-constitution” that i s immune from change by the

people. Such an idea not only offends the most basic principle of American self-

government – that sovereignty resides in the people – but i s inconsistent with

Article I i t s e l f , which confirms the people’s “inalienable” and “indefeasible” right

to “alter” or “reform” the government – “their” government, as Article I calls i t –

as they se e f i t . The Court ha s repeatedly rejected the “absurd” argument that the

Constitution can violate i t s e l f , and i t should do so again.

3. Even if Article I di d control here, th e judicial retirement provision would

not violate i t s equal protection principles. Age-based classifications are

constitutional if they satisfy the deferential “rational basis” t e s t . If a classification

rationally be thought to advance legitimate state interests, the constitution i s

satisfied; but the classification need not be the only way or the best way or the

8



most efficient way to achieve i t s goals. The retirement of judges at a given age –

particularly when coupled with a scheme for continued service by senior judges

after retirement – serves several legitimate interests and has been upheld by this

and other courts, including the Supreme Court of the United States.

4. Nor does mandatory retirement deprive judges of any property interest

without due process, because a judgeship i s not a species of private property.

Property interests exist only where there i s a “legitimate claim of entitlement” to

the thing in question. Judges have no such claim t o their public offices, which they

hold only on the terms that the people of the Commonwealth have provided. Under

the Constitution, judges’ terms end upon their reaching the age of 70; no judge has

a “legitimate claim of entitlement” to remain in office a minute longer.

9



ARGUMENT

The petitioners, members of the Commonwealth’s judiciary, want to stay in

office beyond the time allowed by the people in their Constitution. To accomplish

this, they would have the Court

• gnore the command of the people;

• isregard a foundational principle of American self-government, enshrined

in the text of the very Constitution they purport to be enforcing;

• verrule i t s own precedents to embrace an idea which the Court ha s

repeatedly rejected as “absurd”; and

• ngage in wholesale revision of state constitutional principles of equal

protection and due process.

There i s no principled basis for the Court to do any of t h i s .

I . he Issue Presented By The Petitioners Is Justiciable, Although

Meritless.

Petitioners’ only claim i s that the judicial retirement provision of the

Constitution’s Article V, violates provisions in Article I of that same Constitution;

they rely specifically on Article I , § 1(inherent rights of mankind) and Article I , §

26 (no discrimination by Commonwealth or political subdivisions). See Di s co l l

Complaint, ¶¶ 66-73; T lson Complaint, ¶¶ 65-72.

At one time, i t was unclear whether the validity of a constitutional

amendment, having once been submitted to and ratified by the electorate, could

even be considered by a court. See e .g , Arms trongv . Kng 281 Pa. 207, 214, 126

10



A. 263, 264 (1924) (describing the “many and lengthy opinions” on this subject,

with “results impossible of reconciliation”). The Court resolved this question in

Sander v . Kl ley 433 Pa . 406, 250 A.2d 474 (1969), holding that “alleged

violations of the Constitution are justiciable even after they have been voted upon

and approved by the people.” Id , at 4 1 4 , 250 A.2d a t 478.

Thus, petitioners are correct that the issue they raise in their complaint –

whether the state Constitution violates itself – i s no t non-justiciable. I t i s merely

meritless, and we turn now to i t s merits.

The petitioners’ claim requires them to establish two things: 1) that the

provisions of Article I of the Pennsylvania Constitution control over a l l other

provisions of that Constitution; and 2) that, if they di d control, the judicial

retirement provision would be inconsistent with the equal protection and due

process provisions contained within Article I . They are wrong in both respects, and

we discuss them in turn.

II. here Is No “Super-Constitution”; As The Court Has Correctly Held,

The Idea That One Part Of The Constitution Can “Violate” Another Is

Absurd.

The linchpin of the petitioners’ argument i s the notion that Article I of the

Pennsylvania Constitution comprises a “super-constitution,” Br. for Petitioners at

20 n . 8, impervious to alteration by the people and to which a l l other provisions of

the Constitution must conform. Id , at 18-23. This i s th e same argument, in support

11



of the same claim, that the Court rejected in Gondelman v . Comm. , 520 Pa . 451,

554 A.2d 896 (1989). Ac cord Comm . v . Tharp 562 Pa . 231, 236, 562 A.2d 1251,

1254 (2000) (upholding amendment to Article I , § 6); In re Sou t , 521 Pa. 571,

587, 559 A.2d 489, 497 (1989) (retirement provision applies to appointed as well

as elected judges).

The Gondelman plaintiffs, like petitioners here, based their claim on the idea

that “Article I sets up a standard to which the other articles of our constitution must

comply,” and that “any provision of our constitution must be recognized as being

subordinate to the mandate of Article I . . . . ” Id , at 466, 554 A.2d a t 903.

The Court flatly rejected this idea as “absurd”: “Article V, Section 16(b)

comes from the same sources as the rights enumerated in Article I . I t i s absurd to

suggest that the rights enumerated in Article I were intended to restrain the power

of the people themselves.” Id , at 467, 554 A.2d at 904. Such an idea, said the

Court, “loses sight of the basic overriding principle of American government – that

a l l power i s in the people.” Ib id (internal quotation marks and citation omitted).

The Gondelman plaintiffs, like petitioners here, relied on Article I , § 25,

which declares that “everything” in Article I “ i s excepted out of the general powers

ofgovernmen t and shall remain forever inviolate.” (Emphasis added.) But as the

Court noted, this section – which i s entitled “reservation of powers to the people” –

12



restrains the government from acting upon the people, not the people from acting

upon their government. Id , at 469, 554 A.2d at 905.3

The Court further noted that the Article I argument failed even on i t s own

terms, since among the rights Article I expressly preserves as “inviolate” i s the

right of the people to “alter, reform or abolish their government in such manner as

they may think proper.” Id , at 468, 554 A.2d at 904, quo t i ng PA. CONST., Art. I , §

2. Section 2 declares this right to be both “inalienable” – incapable of being

surrendered – and “indefeasible” – incapable of being voided.4 I t “clearly

embrace[s]” the right to “determine the conditions under which those entrusted

with dispensing the judicial power of the Commonwealth shall serve,” and to

change those conditions from time to time as the people think best. Gondelman at

468-469, 554 A.2d at 904-905. The Court concluded that “[i]n forming the

3 Petitioners suggest that because Section 16(b) mandates that judges “shall

be retired” this necessarily involves governmental action that implicates Article I ,

Section 25. Br. for Petitioners at 25 n. 9. This i s misguided on two levels: f i r s t , this

hyper-technical reading ignores the principle that courts are to avoid reading

constitutional provisions in a strained or technical manner. Eg , Jubel i rer v .

Rendel l , 598 Pa. 16, 953 A.2d 514, 528 (2008). Second, and more importantly,

Section 25 declares that certain powers are beyond the reach of the government

because they are “reserved to the people.” Ib id But i f the people, upon further

consideration, shouldlater

decide that somepower,

hitherto reserved, shouldafter

a l l be delegated to their government, Section 25 could not properly bar the exercise

of that power.

4 Cf DECLARATION OF INDEPENDENCE (1776) (recognizing the “self-evident”

truth that the people retain the “unalienable” right to “alter or abolish” their

government).

13



government of t h i s Commonwealth, the only restraint upon the people i s that

imposed under ou r federal constitution.” Id , at 469, 554 A.2d at 905.

Petitioners urge that Gondelman was wrongly decided and should be

overruled. The cases on which they rely, however, stand only for the unremarkable

propositions that any amendment of the Pennsylvania Constitution must follow the

procedura l requirements of the existing Constitution, and that such amendments

may not conflict with the United States Constitution. See Sander , 433 Pa . at 414-

421, 250 A.2d at 478-481 (upholding use of constitutional convention and rejecting

other procedural challenges); Bergdo l l v . Kne , 557 Pa . 72, 85-87, 731 A.2d 1261,

1269-1270 (1999) (invalidating amendment that violated single-amendment rule);

Ml low v . Pzzi ngr i l l i , 800 A.2d 350, 354 (Pa.Cmwlth. 2002) (considering but

r e j ecting procedural challenges). Ac cordPr i son Soc i ety ofPennsylvan i a v . Comm . ,

565 Pa . 526, 778 A.2d 97 1 (2001) (considering various procedural challenges). But

petitioners have cited no case, and we are aware of none, from Pennsylvania or

anywhere else, that invalidates a constitutional amendment on the ground that i t s

subs tance i s inconsistent with the existing constitution.

Gondelman was correctly decided and i t controls this case. Petitioners’ claim

should be dismissed on this ground alone; and, as in Gondelman , the Court need

not address whether the judicial retirement provision actually does violate the

14



equal protection or due process provisions of Article I . See id , at 469 n.12, 554

A.2d at 905 n. 12. Nevertheless, we now discuss those issues.

III. he Retirement Provision Does Not Violate Equal Protection.

Petitioners suggest – as if t h i s issue had never arisen before – that a ge

represents a “new classification,” Br. for Petitioners at 30, quo t i ng Wndsor v . US ,

699 F.3d 169, 181 (2d Cir. 2012), and that a “f resh analysis” i s needed to figure

out “what level of Pennsylvania equal protection scrutiny should apply.” Br. for

Petitioners at 34 n . 12. Nothing could be further from the truth. To the contrary, i t

i s well-established a) that age-based classifications need only survive rational basis

review; and b) that the judicial retirement provision does so.

A. ge-based classifications are subject only to rational basis review.

The Court ha s long held that “the equal protection provisions of the

Pennsylvania Constitution are analyzed under the same standards used by the

United States Supreme Court when reviewing equal protection claims under the

Fourteenth Amendment to the United States Constitution.” Comm v . Alber t , 563

Pa . 133, 138, 758 A.2d 1149, 1151 (2000) (internal quotation marks and citations

omitted). Accord e .g , Erfr v . Commonwea l th , 568 Pa . 128, 139, 794 A.2d 325,

332 (2002); James v . SEPTA 505 Pa . 137, 477 A.2 1302 (1984).

Under equal protection analysis, a classification that does not impermissibly

interfere with a fundamental right or disadvantageously affect a suspect class will

15



be upheld as long as i t passes the “rational basis” t e s t . “Neither the equal protection

guarantee of the federal constitution nor the corresponding protection in our state

constitution forbids the drawing of distinctions, so long as the distinctions have a

rational basis and relate to a legitimate state purpose.” Ligon i er Tavern , Inc . v .

WCAB (Wlker) , 552 Pa . 237, 244, 714 A.2d 1008, 1011 (1998) (collecting cases).

This Court, like the Supreme Court of the United States, ha s repeatedly held

that a ge i s not a suspect classification. Alber t , at 139-140, 758 A.2d at 1152

(collecting cases); accord Yance v . Bradley 440 U.S. 93 (1979); Mss . Bd of

Ret i remen t v . Mrg a , 427 U.S. 307 (1976) . I t i s equally well established that

individuals do not have a fundamental interest to engage in a particular occupation.

Nxon v . Commonwea l th , 576 Pa . 385, 401, 839 A.2d 277, 288 (2003). The proper

standard for reviewing a challenge to a mandatory retirement provision, then, i s

rational basis.

Under rational basis review,

a classification . . . is not arbitrary or in violation of the equal

protection clause if a ny state of facts reasonably can be conceived to

sustain that classification. . . . I f the court determines that the

classifications are genuine, i t cannot declare the classification void

even if i t might question the soundness or wisdom of the distinction.

Alber t , at 139, 758 A.2d at 1152 (citations omitted).

B. s this Court and others have held, the judicial retirement

provision serves several legitimate state interests.

16



The Court correctly applied these principles in Gondelman to reject the

equal protection challenge to the judicial retirement provision. As the Court

recognized, Section 16(b) was the result of many hours of thoughtful discussion

and debate by the judiciary subcommittee and the constitutional convention.

Gondelman at 461 n. 7, 554 A.2d a t 901, n. 7. See JUDICIARY SUBCOMMITTEE OF

THE PREPARATORY COMMITTEE FOR THE PENNSYLVANIA CONSTITUTIONAL

CONVENTION, Refrence Mnua l N. 5 (1968) (“Reference Manual No.5”).5

This discussion and debate did identify “judges who are mentally or

physically unable to perform their duties either by reason of ol d a ge or by reason of

some mental or physical aliment” as a problem to be addressed. Reference Manual

No. 5 at 199. But despite what the petitioners say, the convention did no t propose

mandatory retirement on the assumption that a l l , or even most, judges over 70 are

unable to perform their duties satisfactorily. Instead, the judiciary subcommittee

identified four reasons f or the adoption of a mandatory retirement provision:

• irst, to increase judicial manpower by bringing in younger judges

while retaining the part time services of willing and able retired

judges6: “The system of mandatory retirement plus post-retirement

5 The Court ha s repeatedly reliedon

the Preparatory Committee’s Reference

Manuals to establish the history of the Constitutional Convention. Eg , St i lp v .

Com , 588 Pa . 539, 560, 905 A.2d 918, 930-31 (2006).

6 Section 16(c), adopted at the same time as the rest of Article V, permits

this Court to assign a former or retired judge on “temporary judicial service.” PA .

CONST., Art. V, § 16(c).

17



services helps solve the pressing problem of court congestion and

delay... . ” Reference Manual No . 5 at 203.

• econd, to eliminate “the unpleasantness of removing aged and

disabled judges on a n individual selective basis. Mandatory retirement

i s more impersonal than individual removal; everyone i s treated alike.

The difficulty and unpleasantness of determining which judges are

senile and which are not i s largely avoided.” Ib id

• hird, to prevent the harm done by “a few” senile judges. Ib id

• inally, to correspond with mandatory retirement in other private and

public employment. Id , at 204.

See Gondelman , at 462 n. 7, 554 A.2d a t 901 n.7 (citing Reference Manual No. 5.)

The discussions on the floor of the Convention confirm this understanding.

As one of the delegates said:

we did take into consideration the fact that men who have attained 70 ,

may be, both physically and mentally, extremely competent and could

conceivably give something of everlasting significance to the

judiciary. I n accordance with t h i s , the Committee recommended that

these judges who are over seventy years of age, although they were

retired could be used by the Supreme Court on temporary assignments

throughout the Commonwealth.

Dba tes ofthe Pennsylvan ia Cons t i tut i ona l Conven t i on : Journa l ofthe

Conven t ion , vol. I I , p. 1078 (1968) (Remarks of Delegate Filson). Delegate

Governor Scranton, also emphasized that “the committee, as Delegate Filson made

clear, allows any judge who wishes t o , after retirement to continue to actively

participate as a judge, which takes care of those people who are concerned about

18



the fact there are a lot people after the a ge of 70 that are s t i l l competent, and

willing and able.” Id , p. 1079.

The Court in Gondelman cited with approval the Third Circuit’s decision in

Mlmedv . Thornburgh , 621 F.2d 565 (3d. Cir. 1980), in which the court

considered and rejected a federal equal protection challenge to Section 16(b). The

Third Circuit emphasized several times that “the Convention’s judiciary committee

did not defend the [mandatory retirement provision] on the basis... , the judges over

70 are unable to perform judicial duties satisfactorily.” Id , at 572. Rather, i t uses

that a ge “to further important system-wide objectives. When a judge reaches age

seventy, important interests of the system demand that even competent judges

retire.” Id at 575. Thus, the petitioners’ contention here – that the purpose of

Section 16(b) i s “removing incapacitated judges from the bench,” Br. for

Petitioners at 34 – “misses by a wide mark,” Mlmed 621 F.2d a t 571, the actual

reasons f or the judicial retirement provision.

This Court in Gondelman agreed with the Third Circuit that these actual

reasons “have not been, nor ca n they be, challenged on the ground that they do not

have a reasonable relationship to a legitimate state purpose.” Id , at 462, 554 A.2d

at 901.

Two years later, in Gregory v . Ashcrof, 501 U.S. 452 (1991), the United

States Supreme Court considered a remarkably similar challenge to Missouri’s

19



constitution, which likewise required judges to retire at a ge 70 . I n r e j ecting that

challenge, the Court identified numerous legitimate state objectives the provision

served:

[T]he [mandatory retirement provision] draws a line at a certain a ge

which attempts to uphold the high competency for judicial post and

which fulfills a societal demand for the highest caliber of judges in the

system; [ i t ] . . . draws a legitimate line to avoid the tedious and often

perplexing decision to determine which judges after a certain a ge are

physically and mentally qualified and those who are not; mandatory

retirement increases the opportunity for qualified persons . . . to share

in the judiciary and permits a n orderly attrition through retirement;

such mandatory provisions also assures predictability and ease in

establishing and administering judges pension plans.

Id , at 471 (internal quotations and citations omitted). The Court held that “any one

of these explanations” would be sufficient to uphold the provision. Id , at 472.

Petitioners, however, sa y that this Court, the Third Circuit and the Supreme

Court of the United States a l l go t i t wrong. See Br. for Petitioners at 34-37. In large

part, their argument rests on a mistaken assertion that the point of Section 16(b) i s

to get rid of judges over 70 because they are a l l , or mostly a l l , incapable. As we

have just discussed, that idea has been repeatedly debunked.

Petitioners also say, however, that mandatory retirement i s not necessary to

secure “sufficient judicial manpower” because of “the continued existence of the

senior judge system;” and that i t i s not necessary to protect the system from

disabled jurists because of other provisions that allow for individualized removals

on that basis. Br. for Petitioners at 35-36. This ignores the fact, as we discussed

20



above, mandatory retirement and the senior judge system were conceived as a

unified whole: two sides of the same coin, neither of which will work as intended

without the other. More fundamentally, their arguments simply misconceive the

limited nature of this Court’s review. As the Court said in rejecting similar

arguments in Gondelman : “[i]f the selected method i s not the most effective or

efficient method to achieve the State obj ective, the people may remedy that by

amending the provision.” Id , at 464, 554 A.2d a t 902.

C. etitioners’ policy arguments should be directed elsewhere.

Finally, the petitioners point to “empirical data” about changing

“demographics,” “the incidence of cognitive decline,” and “the tide of American

history,” Br. for Petitioners at 6-8, 11, 33-34, which, they say, show that “the

passage of time” ha s “eroded” the justification for Section 16(b). Br. for Petitioners

at 35. A similar that-was-then-this-is-now argument was considered and rejected

by the Court in Gondelman : “Assuming . . . that these positions could be

established, they would not be relevant to the constitutional analysis.” Id , at 463,

554 A.2d at 902.

Importantly, i t was also foreseen and rejected by the Constitutional

Convention. If Section 16(b) were to be made subject to change on the basis of

developments in “demographics,” advances in medical science and shifts in public

attitudes, one would think that the appropriate body to assess those factors would

21



be the legislature, which – with a l l due respect to this Court – would seem to be far

better suited to the task. As the Court remarked in a similar context:

The adversarial judicial system i s not an appropriate forum for

analyzing whether . . . legislation works well or poorly, as intended or

in ways unforeseen. If a statute does not work as expected, the

legislature i s the appropriate body to make the judgment and enact

corrective legislation. That body ha s the competence to weigh the

policy considerations and legislate initially and that body ha s the

competence to reassess those considera tions, the efficacy of the initial

legislation, and the wisdom of continuing thereunder or changing

course.

Comm v . Omar , 602 Pa . 595, 616, 981 A.2d 179, 192 (2009).

And yet, the convention specifically rejected this suggestion. Delegate Tate

proposed a change in the language of Section 16(b) to allow the General Assembly

to alter the retirement age on i t s own initiative. Journa l ofthe Conven t i on , vol. I I ,

p. 1077. In support of h i s amendment, Delegate Tate anticipated petitioners’

argument:

None of us knows sitting here today what medical science might be

able to do with our longevity. I t might be that a ge 70 will be entirely

unrealistic 30, 50 and or 75 years from now.

Id at 1078. Delegate Tate’s proposal, however, was defeated, 94-39. Id , at 1049-

1050.

Thus, the people of Pennsylvania have chosen to reserve to themselves alone

the right to alter or abolish the judicial retirement provision. The Court should

continue to respect their decision. The petitioners, as the Court said in Gondelman ,

22



may well have offered “many thoughtful reasons why the a ge 70 limit should be

reconsidered. . . . [B]ut the body that should make that decision i s the people of the

Commonwealth of Pennsylvania.” Id , at 464 n . 9, 554 A.2d at 902 n. 9.

IV. he Petitioners Have No Property Interest To Which Due Process

Might Attach.

The Court ha s repeatedly held that the due process provision of the

Pennsylvania Constitution i s to be analyzed under the same standard as due

process under the Fourteenth Amendment of the United States Constitution.

Pennsylvan i a Game Commss i on v . Mr i ch , 542 Pa . 226, 229 n. 6, 666 A.2d 253,

257 n. 6 (1995)(c i t i ngR v . Dpt . ofPub l i c Wlfare , 535 Pa . 440, 461-462, 636

A.2d 142, 152-153 (1993)). Under that standard, the protections of due process

attach only where a n individual ha s a bona fide property interest.

I t i s equally well established that “[t]o have a property interest, an individual

must have a leg t imate c la imofen t i t lemen t or expectation arising from an

independent source, such as state law or contract.” Mrrel l v . Char t i ers Ya l l ey

Schoo l Ds tr i ct , 579 Pa . 97, 104, 855 A.2d 713, 717 (2004) (emphasis added).

Here, the petitioners have no such “legitimate claim of entitlement”: the right to

hold judicial office, a s defined by Pennsylvania Constitution, specifically exc ludes

the right to continue in office past the constitutional retirement age.

Petitioners are thus quite mistaken when they repeat that, notwithstanding

their impending retirement, the voters elected them to terms of ten years, which

23



they have a property interest in completing. See e .g , Br. for Petitioners at 5 , 40 . I n

Fr i ng v . Kphar t , 466 Pa . 560, 353 A.2d 833 (1976), the Court rejected this very

proposition:

when Appellant ra n for office in 1969, the present Judiciary Article

was law, and both he and the electorate had notice that if he was

elected his new term would be affected by the retirement provision of

Section 16(b)....

Id at 837. Accordingly, the Court held that under the Judiciary Article, “the term

of a mandatorily retired judge expire[s] upon his retirement.” Id , at 566, 353 A.2d

at 836. The same thing i s true of a l l of the petitioners: their terms in office, as

defined by the Constitution, expired a t the end of the years in which they

respectively reached the a ge of 70. They possess no protected interest in anything

more.

Petitioners nevertheless insist that they have a “ right” to remain in office

because they have a constitutionally protected property interest in pursuing “the

occupation which they have chosen.” Br. for Petitioners at 40. They are mistaken.

We cannot emphasize too strongly that a judgeship i s not one of the “common

occupations of l i f e , ” Adler v . Mn tefore Hsp Ass ’n , 453 Pa . 60 , 72 , 311 A.2d

634, 640 (1973), and i t i s not a private fiefdom: i t i s a public office and a public

trust, to be extended, if a t a l l , on such terms as the people see f i t and to be

surrendered in the same way. A judge ha s no more “right” to serve beyond the time

set by the Constitution than a Governor ha s a “ right” to seek a third term. See PA.

24



CONST., Art. IV, § 3 (Governor’s terms of office). The petitioners’ due process

argument i s thus entirely without substance.

25



CONCLUSION

The Court should dismiss the complaints.

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

Phone: (717) 783-3226

FAX: (717) 772-4526

Date: April 29, 2013

Respectfully submitted,

KATHLEEN G. KANE

Attorney General

By: /J BatDeone

26

J . BART DeLONE

Senior Deputy Attorney General

JOHN G. KNORR, III

Chief Deputy Attorney General

Chief, Appellate Litigation Section



CERTIFICATE OF SERVICE

I , J . Bart DeLone, Senior Deputy Attorney General, do hereby certify that I

have this day served the foregoing Brief For Appellees by depositing two copies of

the same in the United States mail, f i r s t class, postage prepaid, to the following:

Robert C. Heim, Esquire

Alexander Robert Bilus, Esquire

David Samuel Caroline, Esquire

William T. McEnroe, Esquire

Dechert LLP

2929 Arch Street

Philadelphia, PA 19104

Counsel for Pet i t i oners i n N. 19 MP2013

William T. Hangley, Esquire

Michele D. Hangley, Esquire

Jon L. Cochran, Esquire

One Logan Square, 27th Floor

Philadelphia, PA 19103-6933

Counsel for Pet i t i oner i n N. 20 MP2013

Date: April 29, 2013

A. Taylor Williams

Administrative Office of Pennsylvania

Courts

1515 Market Street, Suite 1414

Philadelphia, PA 19102

Counsel for Responden t Zygmon t A .

Pnes

//J BatDeone

J . BART DeLONE

Senior Deputy Attorney General

Documents

AG Brief Supporting Mandatory Retirement Provision in Pa Constitution