Received 04/29/2013 Supreme Court Middle District

Filed 04/29/2013 Supreme Court Middle District

IN THE SUPREME COURT OF PENNSYLVANIA

Nos. 19 & 20 MAP 2013

SENIOR JUDGE JOHN DRISCOLL, et al.,

Appellant
v.

in No. 19 MAP 2013

THOMAS W. CORBETT, JR., et al.,

Appellee

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

JUDGE ARTHUR TILLSON,

Appellant
v.

in No. 20 MAP 2013

THOMAS W. CORBETT, JR., et al.,

Appellee

BRIEF FOR RESPONDENTS

ON THE GRANT OF EXTRAORDINARY JURISDICTION FROM COMMONWEALTH COURT NOS.

43 & 48

M.D.

2013

KATHLEEN

G.

KANE

A ttorney General Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Phone: (717) 783-3226 FAX: (717) 772-4526 JOHN
G. BY:

J. BART

DELONE

Sen ior Depu ty A ttorney General

KNORR, III

Ch ie fDepu ty A ttorney Gen era l DATE: April 29, 2013 Ch ie f , Appellate L itiga tion Section

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES STATEMENT OF JURISDICTION

iii 1 2

STATEMENT OF STANDARD AND SCOPE OF REVIEW ORDER IN QUESTION 3

STATEMENT OF THE QUESTION INVOLVED STATEMENT OF THE CASE Procedural History . Statement of Facts SUMMARY OF ARGUMENT ARGUMENT I.

4 5

5 6 8 10

The Issue Presented By The Petitioners Is Justiciable, Although Meritless 10

II.

There Is No Super-Constitution; As The Court Has Correctly Held, The Idea That One Part Of The Constitution Can Violate Another Is Absurd 11 15

III.

The Retirement Provision Does Not Violate Equal Protection . A. Age-based classifications are subject only to rational basis review . B.

15

As this Court and others have held, the judicial retirement provision serves several legitimate state interests 16 21

C. IV.

Petitioners policy arguments should be directed elsewhere .

The Petitioners Have No Property Interest To Which Due Process Might Attach . 23 26 i

CONCLUSION

CERTIFICATE OF SERVICE

27

ii

TABLE OF AUTHORITIES

Page
Cases

A dler v. Mon te f iore Hosp . A ss n , 453 Pa. 60, 311 A.2d 634 (1973) A rmstrong v. King, 281 Pa. 207, 126 A. 263 (1924) Bergdoll v. Kane, 557 Pa. 72, 731 A.2d 1261 (1999) Comm . v. A lbert, 563 Pa. 133, 758 A.2d 1149 (2000) Comm . v. Om ar, 602 Pa. 595, 981 A.2d 179 (2009) Comm . v. Tharp , 562 Pa. 231, 562 A.2d 1251 (2000) Er f er v. Common wealth , 568 Pa. 128, 794 A.2d 325 (2002) Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976) Gondelman v. Comm . , 520 Pa. 451, 554 A.2d 896 (1989) Gregory v. Ashcro f t, 501 U.S. 452 (1991) In re Stout, 521 Pa. 571, 559 A.2d 489 (1989) A, James v. SEPT 505 Pa. 137, 477 A.2 1302 (1984) 15 12 19 passim 24 15 12 22 15, 16 14 11 24

iii

Jubelirer v. Rendell, 598 Pa. 16, 953 A.2d 514 (2008) L igon ier Tavern, Inc. v. WCAB (Walker) , 552 Pa. 237, 714 A.2d 1008 (1998) Malmed v. Thorn burgh , 621 F.2d 565 (3d. Cir. 1980) Mass. Bd. o fRetiremen t v. Murgia, 427 U.S. 307 (1976) Mellow v. Pizzingrilli, 800 A.2d 350 (Pa.Cmwlth. 2002) Merrell v. Chartiers Yalley Sch ool District, 579 Pa. 97, 855 A.2d 713 (2004) Nixon v. Commonwealth , 576 Pa. 385, 401, 839 A.2d 277 (2003) Pennsylvan ia Gam e Commission v. Marich , 542 Pa. 26, 666 A.2d 253 (1995) Prison Society o fPennsylvan ia v. Comm . , 565 Pa. 526, 778 A.2d 971 (2001) R . v. Dep t. o fPub lic Wel f are , 535 Pa. 440, 636 A.2d 142 (1993) Seebo ld v. Prison Health Services , - Pa. -, 57 A.3d 1232 (2012) Stander v. Kelley, 433 Pa. 406, 250 A.2d 474 (1969) Stil p v. Com . , 588 Pa. 539, 905 A.2d 918 (2006) Yance v. Bradley, 440 U.S. 93 (1979) 16 17 11, 14 2 23 14 23 16 23 14 16 19 16 13

iv

Statutes

42 Pa.C.S. 726

1,

Constitutional Provisions

PA. CONST., Art. I, 1 PA. CONST., Art. I, 2 PA. CONST., Art. I, 25 PA. CONST., Art. I, 26 PA. CONST., Art. I, 6 PA. CONST., Art. IV, 3 PA. CONST., Art. V, 16(b) PA. CONST., Art. V, 16(c)

10 13 12, 13 10 12 25 passim 6, 17

Other Authorities

Deba tes o f the Pennsylvan ia Constitutional Con ven tion : Journal o f th e Conven tion , (1968) DECLARATION JUDICIARY
OF INDEPENDENCE

18, 22 (1776) 13

SUBCOMMITTEE OF THE PREPARATORY COMMITTEE FOR THE CONSTITUTIONAL CONVENTION,

PENNSYLVANIA

Re f erence Man ual No. 5 (1968)

17, 18

STATEMENT OF JURISDICTION

This matter comes before the Court pursuant to the Courts orders of March

28, 2013, granting petitioners applications for extraordinary relief. This Court has

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

STATEMENT OF STANDARD AND SCOPE OF REVIEW

Scope o f review. Pursuant to 42 Pa.C.S. 726, the Court exercises plenary

jurisdiction over this matter.

Standard o f review. This matter presents issues of law over which the Court

exercises plenary review. E. g. , Seebo ld v. Prison Health Services, - Pa. -, 57 A.3d

1232, 1243 (2012).

ORDER IN QUESTION

The Court having asserted extraordinary jurisdiction over this case at an

early stage, there is no order to review.

STATEMENT OF THE QUESTION INVOLVED

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

the Constitution of Pennsylvania, violates that same Constitution?

STATEMENT OF 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. OKeefe, Sandra

Mazer Moss and Arthur Tilson; the respondents are the Governor and the Secretary Commonwealth.1

of the

Petitioners claim that the judicial retirement provision

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

declaratory relief against its enforcement.

Procedural History.

The Driscoll petitioners filed their complaint in Commonwealth Court on

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

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 list. In the

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

demurrer, which remained outstanding when the Court assumed jurisdiction.

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

was dismissed by stipulation in the Tilson case on April 13, 2013. As of this writing, the parties have agreed to file a similar stipulation in the Drisco ll case.

Statement of Facts

In 1968, the 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 attain ing 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 last day o f th e calen dar year in which they attain

the age of 70 years. (Emphasis added.)

A retired 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 life insurance, and do not accumulate

additional pension credits. Driscoll Complaint, 26-27; Tilson 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
2

retained in 2005. In 2012, he turned 70 and was retired at the end of that year.

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

impending retirement, he was retained for a ten-year term ending in 2016. Driscoll ra at 23, this is incorrect as a matter of Complaint, 4. As we explain below, see in f law; the terms of Judge Driscoll and the other petitioners end with their respective retirements. 6

Driscoll Complaint, 4. According to the website of the Unified Judicial System,

he now serves as a senior judge.

Judge OKeefe is 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 at the end of that year. Driscoll 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. Driscoll Complaint, 6. According to

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

Judge Tilson is 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. Tilson

Complaint, 4.

SUMMARY OF

ARGUMENT

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

constitution violates the constitution of which it is a part is justiciable but

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

Constitution is a super-constitution that can never be changed and to which all

other constitutional provisions must conform; and 2) that Article Vs judicial

retirement provision is inconsistent with Article Is equal protection and due

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

2. There is no super-constitution that is 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 is inconsistent with

Article I itself, which confirms the peoples inalienable and indefeasible right

to alter or reform the government their government, as Article I calls it

as they see fit. The Court has repeatedly rejected the absurd argument that the

Constitution can violate itself, and it should do so again.

3. Even if Article I did control here, the judicial retirement provision would

not violate its equal protection principles. Age-based classifications are

constitutional if they satisfy the deferential rational basis test. If a classification

rationally be thought to advance legitimate state interests, the constitution is

satisfied; but the classification need not be the only way or the best way or the 8

most efficient way to achieve its 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 is not a species of private property.

Property interests exist only where there is a legitimate claim of entitlement to

the thing in question. Judges have no such claim to 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.

ARGUMENT

The petitioners, members of the Commonwealths judiciary, want to stay in

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

this, they would have the Court

ignore the command of the people;

disregard a foundational principle of American self-government, enshrined in the text of the very Constitution they purport to be enforcing;

overrule its own precedents to embrace an idea which the Court has repeatedly rejected as absurd; and

engage in wholesale revision of state constitutional principles of equal protection and due process.

There is no principled basis for the Court to do any of this.

I.

The Issue Presented By The Petitioners Is Justiciable, Although Meritless.

Petitioners only claim is that the judicial retirement provision of the

Constitutions 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 Driscoll

Complaint, 66-73; Tilson Complaint, 65-72.

At one time, it 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. , A rmstrong v. King, 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

Stander v. Kelley, 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 414, 250 A.2d at 478.

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

whether the state Constitution violates itself is not non-justiciable. It is merely

meritless, and we turn now to its merits.

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

provisions of Article I of the Pennsylvania Constitution control over all other

provisions of that Constitution; and 2) that, if they did 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.

There 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 is 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 all other provisions of

the Constitution must conform. Id. , at 18-23. This is the 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). A ccord Comm . v. Tharp , 562 Pa. 231, 236, 562 A.2d 1251,

1254 (2000) (upholding amendment to Article I, 6); In re Stout, 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 at 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. It is 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

all power is in the people. Ibid (internal quotation marks and citation omitted).

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

which declares that everything in Article I is excepted out of the general powers

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

Court noted, this section which is 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 its own

terms, since among the rights Article I expressly preserves as inviolate is 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 ting 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 It 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

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 is misguided on two levels: first, this hyper-technical reading ignores the principle that courts are to avoid reading constitutional provisions in a strained or technical manner. E. g. , Jubelirer v. Rendell, 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. Ibid. But if the people, upon further consideration, should later decide that some power, hitherto reserved, should after all be delegated to their government, Section 25 could not properly bar the exercise of that power.
4

C f . 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 this Commonwealth, the only restraint upon the people is that

imposed under our 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 Stander, 433 Pa. at 414-

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

other procedural challenges); Bergdoll v. Kane, 557 Pa. 72, 85-87, 731 A.2d 1261,

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

Mellow v. Pizzingrilli, 800 A.2d 350, 354 (Pa.Cmwlth. 2002) (considering but

rej ecting procedural challenges). A ccord Prison Society o fPennsylvan ia v. Comm . ,

565 Pa. 526, 778 A.2d 971 (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 its

substance is inconsistent with the existing constitution.

Gon delman was correctly decided and it 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.

The Retirement Provision Does Not Violate Equal Protection.

Petitioners suggest as if this issue had never arisen before that age

represents a new classification, Br. for Petitioners at 30, quoting Windsor v. U. S. ,

699 F.3d 169, 181 (2d Cir. 2012), and that a fresh analysis is 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, it

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

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

A.

Age-based classifications are subject only to rational basis review.

The Court has 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. A lbert, 563

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

f omitted). A ccord, e. g. , Er er v. Comm onwealth , 568 Pa. 128, 139, 794 A.2d 325,

332 (2002); James v. SEPT A , 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 it passes the rational basis test. 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. L igon ier Tavern, Inc. v.

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

This Court, like the Supreme Court of the United States, has repeatedly held

that age is not a suspect classification. A lbert, at 139-140, 758 A.2d at 1152

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

Retiremen t v. Murgia, 427 U.S. 307 (1976) . It is equally well established that

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

Nixon v. Commonwealth , 576 Pa. 385, 401, 839 A.2d 277, 288 (2003). The proper

standard for reviewing a challenge to a mandatory retirement provision, then, is

rational basis.

Under rational basis review,

a classification ... is not arbitrary or in violation of the equal protection clause if any state of facts reasonably can be conceived to sustain that classification. ... If the court determines that the classifications are genuine, it cannot declare the classification void even if it might question the soundness or wisdom of the distinction.

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

B.

As 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.

Gon delman at 461 n. 7, 554 A.2d at 901, n. 7. See JUDICIARY

SUBCOMMITTEE OF

THE PREPARATORY COMMITTEE FOR THE PENNSYLVANIA CONSTITUTIONAL

CONVENTION, Re f erence Manua l No. 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 old age 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 not propose

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

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

identified four reasons for the adoption of a mandatory retirement provision:

First, 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

The Court has repeatedly relied on the Preparatory Committees Reference

Manuals to establish the history of the Constitutional Convention. E. g. , Stil p 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.

Second, to eliminate the unpleasantness of removing aged and disabled judges on an individual selective basis. Mandatory retirement is more impersonal than individual removal; everyone is treated alike. The difficulty and unpleasantness of determining which judges are senile and which are not is largely avoided. Ibid.

Third, to prevent the harm done by a few senile judges. Ib id.

Finally, to correspond with mandatory retirement in other private and public employment. Id. , at 204.

See Gon delman , at 462 n. 7, 554 A.2d at 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. In accordance with this, 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.

Deba tes o f the Pen nsylvan ia Constitutional Conven tion : Journal o f th e

Con ven tion , vol. II, 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 to, 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 age of 70 that are still competent, and

willing and able. Id. , p. 1079.

The Court in Gondelm an cited with approval the Third Circuits decision in

Malm ed v. Thorn burgh , 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 Conventions 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, it uses

that age 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) is removing incapacitated judges from the bench, Br. for

Petitioners at 34 misses by a wide mark, Malmed, 621 F.2d at 571, the actual

reasons for the judicial retirement provision.

This Court in Gon delman agreed with the Third Circuit that these actual

reasons have not been, nor can 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. Ashcro f t, 501 U.S. 452 (1991), the United

States Supreme Court considered a remarkably similar challenge to Missouris

19

constitution, which likewise required judges to retire at age 70. In rej ecting that

challenge, the Court identified numerous legitimate state objectives the provision

served:

[T]he [mandatory retirement provision] draws a line at a certain age 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; [it] ... draws a legitimate line to avoid the tedious and often perplexing decision to determine which judges after a certain age 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 an 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, say that this Court, the Third Circuit and the Supreme

Court of the United States all got it 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) is

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

have just discussed, that idea has been repeatedly debunked.

Petitioners also say, however, that mandatory retirement is not necessary to

secure sufficient judicial manpower because of the continued existence of the

senior judge system; and that it is 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 Courts review. As the Court said in rejecting similar

arguments in Gon delman : [i]f the selected method is 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 at 902.

C.

Petitioners 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 has 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, it 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 all 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 is 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 is the appropriate body to make the judgment and enact corrective legislation. That body has the competence to weigh the policy considerations and legislate initially and that body has the competence to reassess those considerations, the efficacy of the initial legislation, and the wisdom of continuing thereunder or changing course.

Comm . v. Om ar, 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 its own initiative. Journal o f th e Conven tion , vol. II,

p. 1077. In support of his amendment, Delegate Tate anticipated petitioners

argument:

None of us knows sitting here today what medical science might be able to do with our longevity. It might be that age 70 will be entirely unrealistic 30, 50 and or 75 years from now.

Id. at 1078. Delegate Tates 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 Gon delman ,

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may well have offered many thoughtful reasons why the age 70 limit should be

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

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

IV.

The Petitioners Have No Property Interest To Which Due Process Might Attach.

The Court has repeatedly held that the due process provision of the

Pennsylvania Constitution is to be analyzed under the same standard as due

process under the Fourteenth Amendment of the United States Constitution.

Pennsylvan ia Gam e Commission v. Marich , 542 Pa. 226, 229 n. 6, 666 A.2d 253,

f Pub lic Wel 257 n. 6 (1995)(citing R. v. Dept. o f are, 535 Pa. 440, 461-462, 636

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

attach only where an individual has a bona fide property interest.

It is equally well established that [t]o have a property interest, an individual

must have a legitimate claim o f en titlemen t or expectation arising from an

independent source, such as state law or contract. Merrell v. Chartiers Yalley

School District, 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, as defined by Pennsylvania Constitution, specifically excludes

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. In

Firing v. Keph art, 466 Pa. 560, 353 A.2d 833 (1976), the Court rejected this very

proposition:

when Appellant ran 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 is true of all of the petitioners: their terms in office, as

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

respectively reached the age 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 is not one of the common

occupations of life, A dler v. Mon te f iore Hosp . A ss n , 453 Pa. 60, 72, 311 A.2d

634, 640 (1973), and it is not a private fiefdom: it is a public office and a public

trust, to be extended, if at all, on such terms as the people see fit and to be

surrendered in the same way. A judge has no more right to serve beyond the time

set by the Constitution than a Governor has a right to seek a third term. See PA. 24

CONST., Art. IV, 3 (Governors terms of office). The petitioners due process

argument is thus entirely without substance.

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CONCLUSION

The Court should dismiss the complaints.

Respectfully submitted,

KATHLEEN G. KANE Attorney General

By:

/ s / J . Ba r tD e L o n e
J. BART DeLONE Senior Deputy Attorney General

JOHN G. KNORR, III Chief Deputy Attorney General Chief, Appellate Litigation Section

Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Phone: (717) 783-3226 FAX: (717) 772-4526

Date: April 29, 2013

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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, first 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 Counself or Petitioners in No. 1 9 MAP 2013

A. Taylor Williams Administrative Office of Pennsylvania Courts 1515 Market Street, Suite 1414 Philadelphia, PA 19102 Counsel f or Responden t Zygmon t A . Pines

William T. Hangley, Esquire Michele D. Hangley, Esquire Jon L. Cochran, Esquire One Logan Square, 27th Floor Philadelphia, PA 19103-6933 Counsel f or Petitioner in No. 2 0 MAP 2 01 3

/ s / J . Ba r tD e L o n e
J. BART DeLONE Senior Deputy Attorney General

Date: April 29, 2013

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