Last updated: April 30. 2014 11:13PM - 1864 Views
The Morning Call

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A federal appeals court has ruled against a group of four Pennsylvania judges, including Northampton County Judge Leonard Zito, who sued to overturn the state’s mandatory retirement age for judges.

In a four-page opinion Tuesday, the U.S. 3rd Circuit Court of Appeals upheld a September decision by U.S. District Judge John E. Jones in Harrisburg that changing the retirement age was beyond the power of the courts and that any revision would have to come from lawmakers.

Although he expressed sympathy for the Pennsylvania judges, he said two earlier decisions upholding the constitutionality of Pennsylvania’s and another states’ mandatory judicial retirement ages required him to dismiss their suit.

Considering the judges’ argument that a 1968 amendment to the state Constitution requiring judges to resign at age 70 violates their right to equal protection under the law, the 3rd Circuit said it and the U.S. Supreme Court long ago ruled that such requirements are constitutional.

The 3rd Circuit upheld Pennsylvania’s retirement age in 1980 and the Supreme Court upheld Missouri’s judicial retirement age in 1991.

Philadelphia attorney Alexander Bilus, who represented the judges, said they now have the options of accepting the 3rd Circuit’s decision or asking the U.S. Supreme Court to consider their arguments.

Besides the small number of cases the Supreme Court agrees to hear — less than 1 percent — the judges face a challenge in persuading the Supreme Court it should reverse its own ruling.

But Bilus there’s ample evidence to persuade the justices that the court’s 23-year-old decision on Missouri’s retirement age — which applies in every state — is outdated. People are living longer, staying healthier and hanging on to their mental acuity well into their senior years, he said.

“I think there have been advances in our understanding of how people age and what happens to people when they age,” Bilus said.

A spokesman for the Pennsylvania Attorney General’s Office, which represented the state, said the court reached the correct decision. A call to Zito’s office was not returned.

In addition to Zito, the judges involved in the federal challenge include Allegheny County Judge Gerald Solomon and Philadelphia Judges John W. Herron and Benjamin Lerner.

In its 1980 decision, the 3rd Circuit found the Pennsylvania’s retirement mandate would promote the election of new judges, eliminate unpleasantness in forcing unfit judges to leave the bench and avoid the harm caused by judges who become senile while on the bench, all of which outweigh the harm from discrimination to individual judges.

In their appeal of Jones’ decision, the Pennsylvania judges argued that the Supreme Court’s recent decision striking down the federal Defense of Marriage Act requires courts to perform a more stringent test to see whether a law’s detrimental effects outweigh any benefit.

The 3rd Circuit rejected that argument, saying that it was required to follow the Supreme Court’s 1991 decision upholding the constitutionality of mandatory retirement ages unless the high court explicitly overturned it, which the same-sex marriage decision did not.

“We thus are in no position to break from that controlling precedent,” the court said.

The federal court challenge was the second attempt by Pennsylvania judges to invalidate the mandatory retirement age. The state Supreme Court in June threw out a challenge in state court, finding that the ability to continue to work in public service indefinitely was not one of the fundamental rights the framers of the state Constitution intended to protect.

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