This blog previously posed the question “Is Mandatory Judicial Retirement at 70 Unconstitutional?” That was because some Pennsylvania judges had challenged that state’s requirement that judges retire at age 70, which led to speculation about whether New Jersey’s own mandatory judicial retirement age might be at risk.
Yesterday, in Driscoll v. Corbett, the Supreme Court of Pennsylvania reaffirmed a prior ruling, Gondelman v. Commonwealth, 520 Pa. 451 (1989), that the mandatory retirement age for judges embodied in the Pennsyvlania Constitution is not unconstitutional. The mandatory retirement provision was “subject to deferential, rational-basis review under both equal protection and due process, and it satisfies that standard.”
As to the plaintiff judges’ contention that the mandatory retirement provision violated a different constitutional protection of “the inherent rights of mankind,” the Court stated that it did not “believe that the charter’s framers regarded an immutable ability to continue in public service as a commissioned judge beyond seventy years of age as being within the scope of the inherent rights of mankind.” Plaintiffs’ other arguments, which in essence asserted that voiding the mandatory retirement age would be better public policy in various alleged respects, failed. Making desirable public policy “is generally not the concern of the court.”
The decision was unanimous, though three Justices filed a concurring opinion that offered an additional reason for their view. The concurring jurists noted that judges are “uniquely positioned and sequestered in various ways to protect their impartiality and independence.” But “too much immunity risks usurpation of power.” Thus, it is appropriate to “establish a temporal limit on judicial service,” a limit that in no way undermines judicial independence but “simply creates terminal points at which the power will pass to others.”
Incidentally, the Court recognized at the outset the potential difficulty with Justices who themselves are affected by the mandatory retirement provision deciding this case. The Court concluded, however, that under the rule of necessity, it was not only appropriate but required that the Justices rule on the issue.
The “inherent rights” clause of the Pennsylvania Constitution on which plaintiffs relied is somewhat parallel to Article I, section 1 of the New Jersey Constitution, which begins “All persons are by nature free and independent, and have certain natural and inalienable rights ….” The Pennsylvania decision, which was premised not only on Gondelman but also on Gregory v. Ashcroft, 501 U.S. 452 (1991), which applied federal constitutional principles and upheld a Missouri mandatory judicial retirement provision, leaves little room for a challenge to New Jersey’s own mandatory judicial retirement age.