As horrifying as the thought of another 10-year term for Pennsylvania Chief Justice Ron Castille might be, there is merit in a new lawsuit by six judges hoping to change the state's requirement for them to retire after they hit the ripe old age of 70.
The action, taken by six judges including Northampton County Judge Leonard Zito, takes aim at a 27-word passage in the Pennsylvania Constitution, which they claim clashes with the U.S. Constitution. "Justices, judges and justices of the peace shall be retired on the last day of the calendar year in which they attain the age of 70 years," says Article V, Section 16 of the state's supreme law.
That, says the Zito et al lawsuit, violates the 14th Amendment, which flatly prohibits any state from depriving anybody's rights without "due process," and from denying "equal protection" under the law.
The good news is that the lawsuit, if successful, will eliminate a state constitutional provision that discriminates on the basis of age alone. That provision will have Zito, who is a pretty good judge, as far as I can tell, thrown out on his ear at the end of next year (despite winning his 10-year term in 2009).
The bad news is that the elimination of the mandatory retirement requirement also could mean that a retention vote would keep Castille on the bench until 2024.
Castille has a worrisome resume, including his role in winking at the corruption of two Luzerne County judges, rulings in favor of illegal gambling casino legislation and pay grabs, and other problems.
I have long argued that the political process is the worst way to select judges, especially for the state Supreme Court and two other appellate courts, and it is nearly impossible to dislodge bad judges with retention votes unless they displease the party bosses who pull their strings. We need merit selection, as used in the federal system, but that's a topic for another day.
As reported in The Morning Call on Monday, Zito and five other judges sued the state in Commonwealth Court (an appellate court) to challenge the out-at-70 provision, which kicks them out regardless of their fitness or the wishes of voters. The logic of their complaint is pretty hard to refute.
Citing the 14th Amendment protections, it says the six judges will be "prematurely forced … out of their jobs." It points out that a judge who must retire because of his or her age can then serve as a "senior judge" on a temporary basis, but only at a fee of $522 for each day spent in court, with no payment for the extensive work judges must do in chambers to prepare for a case.
That can turn into $522 for several days of work, compared to full-time judicial salaries that start at more than $3,300 a week plus lavish benefits. But if a senior judge can function with all the authority and demands of an under-70 judge, where is the logic for the age discrimination?
"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," the complaint says. "Age, like race, sex and national origin, is an immutable characteristic. Age frequently bears no relation to ability to perform or contribute to society."
The complaint says America "has had a long and unfortunate history of age discrimination," subjecting older people to "stereotyped distinctions" and concluding they are "senile, incompetent," etc.
I had misgivings about state appellate courts, given their disturbing conduct in recent years, deciding on their own whether the Pennsylvania Constitution can be modified, a step that usually requires a constitutional amendment. Robert Heim, the Philadelphia lawyer representing Zito et al, assured me they can — but "only if it conflicts with the federal Constitution."
I told him I'd worry if judges of Castille's caliber could "fiddle" with the constitution to suit themselves. "They can't fiddle with it. They can strike down a provision," Heim said, but could not give me an example of where that has happened before.
As it happens, I'm older than Zito, although some may not consider that a compelling argument for keeping him on the bench, and I know about the pain of age discrimination. For example, they won't let me play in the National Hockey League, even when they have a season, and there is some sort of genetic trigger that renders many of us geezers all thumbs when it comes to things like new computer techniques or programming a CD player.
On the other hand, in pursuits other than ice hockey, it is hard to argue that an arbitrary age limit is better than, say, considering perception and wisdom. Benjamin Franklin was older than either Zito or me when he played a key role in getting this nation on its way, and the Marquis de Lafayette was younger than some of my grandchildren when he did likewise.
More to the point, one of the most admired judges in American history was Supreme Court Justice Oliver Wendell Holmes, who served until he was past 90.
If Holmes were in Pennsylvania today, he'd summarily get kicked off the bench, while judges like Castille and Bradford Timbers of Emmaus (once deemed to be "America's worst judge" by Reader's Digest) can be dislodged only with great effort.
It's beyond unreasonable. It's madness.
paul.carpenter@mcall.com 610-820-6176
Paul Carpenter's commentary appears Sundays, Wednesdays and Fridays.
