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MALMED v. THORNBURGH

September 21, 1979

EDWIN S. MALMED, STANLEY L. KUBACKI, GREGORY G. LAGAKOS, JOSEPH T. MURRHY, AND JAMES L. STERN, Plaintiffs
v.
RICHARD L. THORNBURGH, Individually and as Governor of Pennsylvania, ETHEL D. ALLEN, Individually and as Secretary of the Commonwealth of Pennsylvania, ROBERT E. CASEY, Individually and as Treasurer of the Commonwealth of Pennsylvania, and ALEXANDER F. BARBIERI, Individually and as Pennsylvania State Court Administrator, Defendants



The opinion of the court was delivered by: DITTER

ADJUDICATION

Plaintiffs in this case are five judges of the Court of Common Pleas of the First Judicial District of Pennsylvania, which consists of the County of Philadelphia. They brought this action to challenge the Pennsylvania Constitution's requirement that all state court justices, judges, and justices of the peace retire at age 70. The complaint charges that this provision violates the plaintiffs' rights to both due process and equal protection of the laws as secured by the Constitution of the United States. Plaintiffs ask me to declare that the mandatory retirement section of the Pennsylvania Constitution is null and void and that the defendant state officials should be enjoined from enforcing it.

 This case was tried without a jury. After considering all the evidence, as well as the briefs and arguments of counsel, I conclude that the first sentence of Article V, Section 16(b) of the Pennsylvania Constitution is in conflict with both the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, at least insofar as it applies to judges of the Courts of Common Pleas. This provision is therefore null and void, and its enforcement, as to Common Pleas Court judges, must be enjoined.

 My holding is based upon the following

 FINDINGS OF FACT

 1. Plaintiff, Edwin S. Malmed, is a Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania, composed of the County of Philadelphia, and was first appointed a Judge of the Court of Common Pleas on December 30, 1971. Plaintiff Malmed holds office by virtue of election in November, 1973, and pursuant to a Commission issued by the Governor of Pennsylvania on December 10, 1973, which certified plaintiff Malmed's right to hold said office from the first Monday of January, 1974. *fn1"

 2. Plaintiff Malmed will attain his seventieth birthday on January 2, 1982.

 3. Plaintiff, Stanley L. Kubacki, is a Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania, composed of the County of Philadelphia, and was first appointed a Judge of the Court of Common Pleas on December 30, 1971. Plaintiff Kubacki holds office by virtue of election in November, 1973, and pursuant to a Commission issued by the Governor of Pennsylvania on December 10, 1973, which certified plaintiff Kubacki's right to hold said office from the first Monday of January, 1974.

 4. Plaintiff Kubacki will attain his seventieth birthday on August 25, 1985.

 5. Plaintiff, Gregory G. Lagakos, is a Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania, composed of the County of Philadelphia. Plaintiff Lagakos was appointed as a Judge of the County Court of Philadelphia on August 26, 1965, and elected in November, 1965, for a ten year term commencing in January 1966. On January 1, 1969, by virtue of an amendment of the Pennsylvania Constitution, plaintiff Lagakos became a Judge of the Court of Common Pleas for a term to be completed in January 1976. Plaintiff Lagakos was retained in an election in November, 1975, and currently holds office by virtue of such election and pursuant to a Commission issued by the Governor of Pennsylvania on December 17, 1975, which certified plaintiff Lagakos' right to hold said office from the first Monday of January, 1976.

 7. Plaintiff, Joseph T. Murphy, is a Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania composed of the County of Philadelphia. Plaintiff Murphy was appointed as a Judge of the Municipal Court of Philadelphia County on December 27, 1968. In November, 1969, plaintiff Murphy was elected as a Judge of the Municipal Court of Philadelphia County for a six-year term commencing in January, 1970. On December 31, 1971, plaintiff Murphy was appointed as Judge of the Court of Common Pleas. Plaintiff Murphy currently holds office by virtue of election in November, 1973, and pursuant to a Commission issued by the Governor of Pennsylvania on December 10, 1973, which certified plaintiff Murphy's right to hold said office from the first Monday of January, 1974.

 8. Plaintiff Murphy will attain his seventieth birthday on October 21, 1980.

 9. Plaintiff, James L. Stern, is a Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania composed of the County of Philadelphia. Plaintiff Stern was appointed as a Judge of the County Court of Philadelphia in June, 1964, and elected, in November, 1965, for a ten-year term commencing in January, 1966. On January 1, 1969, by virtue of an amendment of the Pennsylvania Constitution, plaintiff Stern became a Judge of the Court of Common Pleas for a term to be completed in January 1976. Plaintiff Stern was retained in an election in November 1975, and currently holds office by virtue of such election and pursuant to a Commission issued by the Governor of Pennsylvania on December 17, 1975, which certified his right to hold said office from the first Monday of January 1976.

 10. Plaintiff Stern will attain his seventieth birthday on January 26, 1980.

 11. Defendant Richard L. Thornburgh is the Governor of the Commonwealth of Pennsylvania.

 12. Defendant Ethel D. Allen is the Secretary of the Commonwealth of Pennsylvania.

 13. Defendant Robert E. Casey is the Treasurer of the Commonwealth of Pennsylvania.

 14. Defendant Alexander F. Barbieri is the Court Administrator of the Commonwealth of Pennsylvania.

 15. Article V, Section 15 of the Pennsylvania Constitution (Adopted in 1968 to be effective January 1, 1969) provides for the tenure and election of judges and justices as follows:

 
(a) The regular term of office of justices and judges shall be ten years and the regular term of office for judges of the municipal court and traffic court in the City of Philadelphia and of justices of the peace shall be six years. The tenure of any justice or judge shall not be affected by changes in judicial districts or by reduction in the number of judges.
 
(b) A justice or judge elected under section thirteen (a), appointed under section thirteen (d) or retained under this section fifteen (b) may file a declaration of candidacy for retention election with the officer of the Commonwealth who under law shall have supervision over elections on or before the first Monday of January of the year in which his term of office expires. If no declaration is filed, a vacancy shall exist upon the expiration of the term of office of such justice or judge, to be filled by election under section thirteen (a) or by appointment under section thirteen (d) if applicable. If a justice or judge files a declaration, his name shall be submitted to the electors without party designation, on a separate judicial ballot or in a separate column on voting machines, at the municipal election immediately preceding the expiration of the term of office of the justice or judge, to determine only the question whether he shall be retained in office. If a majority is against retention, a vacancy shall exist upon the expiration of his term of office, to be filled by appointment under section thirteen (b) or under section thirteen (d) if applicable. If a majority favors retention, the justice or judge shall serve for the regular term of office provided herein, unless sooner removed or retired. At the expiration of each term a justice or judge shall be eligible for retention as provided herein, subject only to the retirement provisions of this article.

 16. Article V, Section 16(b) of the Pennsylvania Constitution (Adopted in 1968) to be effective January 1, 1969) provides:

 
(b) Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years. Former and retired justices, judges and justices of the peace shall receive such compensation as shall be provided by law. No compensation shall be paid to any justice, judge or justice of the peace who is suspended or removed from office under section eighteen of this article or under article six.

 17. Defendant Thornburgh in accordance with Article V, Section 13(b) of the Pennsylvania Constitution nominates and, with the advice and consent of two-thirds of members elected to the Senate, appoints a justice or judge to fill a vacancy in the office of justice or judge. Act of April 9, 1929, P.L. 177, No. 175 § 207.1 as added to by Act of November 8, 1976, P.L. 1109, No. 227 § 2, 71 P.S. § 67.1. Any judicial office previously held by a judge or justice who has attained seventy years of age has been considered to be a vacancy to be filled pursuant to this gubernatorial appointment power.

 18. Defendant Thornburgh issues a commission to each person elected as a judge or justice. Act of June 3, 1937, P.L. 1333, art. XIV, § 1415, As amended Act of May 18, 1945, P.L. 694, No. 298, § 1, 25 P.S. § 3165. Defendant Thornburgh issues commissions to persons elected to judicial offices made vacant by a judge or justice who has attained seventy years of age.

 19. Defendant Allen is responsible for sending to the county board of elections of each county in Pennsylvania a written notice designating all the offices, including judicial offices, for which candidates are to be nominated. Act of June 3, 1937, P.L. 1333, art. IX, § 905, As amended Act of August 13, 1963, P.L. 707, § 10, 25 P.S. § 2865. Defendant Allen designates to be filled by election, any vacancy in a judicial office caused by a judge or justice who attains seventy years of age.

 20. Defendant Allen is responsible for certifying to county boards of elections the laws of candidates for judicial office. Act of June 3, 1937, P.L. 1333, art. II, § 201, 25 P.S. § 2621. Defendant Allen certifies, as a judicial vacancy, the office of any judge or justice who has attained seventy years of age. Defendant Allen will not certify, for inclusion on the ballot of a retention election, any judge or justice who has attained seventy years of age.

 21. Defendant Casey is responsible for the payment of all salaries established by law, including that of any judge or justice. Act of March 30, 1811, P.L. 145, 5 Sm.L. 228, § 8, As amended, Act of July 18, 1974, P.L. 472, No. 168, § 1, 72 P.S. § 4521. Defendant Casey will not continue to pay a salary to any judge or justice who attains seventy years of age. Defendant Casey will, however, commence to dispense to any judge or justice who attains seventy years of age any funds to which such judge or justice may be entitled under the State Employees' Retirement Code, 71 Pa.C.S. § 1501 Et seq.

 22. Defendant Barbieri is responsible for the maintenance of central records relating to the qualifications, employment status, basis of compensation and other personnel information of all personnel of the Pennsylvania judicial system compensated in whole or in part through funds appropriated to the judicial system pursuant to Rule 504(10) of the Pennsylvania Rules of Judicial Administration. Defendant Barbieri authorizes the Treasurer of the Commonwealth to discontinue the salary of any judge or justice who attains seventy years of age, and thereby causes such judge or justice to be removed from the State Judicial payroll. Defendant Barbieri also certifies to the Governor and to the Secretary of the Commonwealth a vacancy in any judicial office held by a judge or justice who attains seventy years of age.

 23. No non-judicial elected official in Pennsylvania is subject to a mandatory retirement age.

 24. Section 8 of the Schedule to Article 5 of the Pennsylvania Constitution (Adopted in 1968 to be effective January 1, 1969) the so-called "grandfather clause," provides that "(notwithstanding) any provision in the article, a present justice, judge or justice of the peace may complete his term of office." The term "present" refers to the effective date of the provision.

 25. Plaintiffs herein cannot avail themselves of the so-called "grandfather clause" to avoid retirement at age 70. Only those justices and judges elected prior to January 1, 1969, namely Chief Justice Eagen, Justice O'Brien and Justice Roberts of the Pennsylvania Supreme Court are subject to the so-called "grandfather clause."

 26. Article V, Section 18 of the Pennsylvania Constitution (Adopted in 1968 to be effective January 1, 1969) provides for the creation of a Judicial Inquiry and Review Board. The Board considers grounds for suspension, removal, discipline, or compulsory retirement of a justice or judge for prohibited activities, including a violation of any legal or judicial canon, misconduct in office, neglect of duty, failure to perform his duties, conduct which prejudices the proper administration of justice or brings the judicial office into disrepute, or for disability seriously interfering with the performance of his duties. Pursuant to the above provision, the Pennsylvania Supreme Court promulgated Rules of Procedure Governing the Judicial Inquiry and Review Board, a copy of which is marked Exhibit P-8.

 27. Pursuant to the present provisions of Article V, Section 16(b) of the Pennsylvania Constitution each of the plaintiffs would be retired from office on the following dates notwithstanding the fact that none of them will have completed the term of office for which he was elected:

 TABLE

 28. If each of the plaintiffs is forced to retire upon the attainment of his seventieth birthday, defendant Thornburgh will declare a vacancy in that judge's office, will consider himself free to appoint a new judge to fill that vacancy, and will issue a commission to any person appointed and confirmed to fill that vacancy.

 29. If each of the plaintiffs is forced to retire upon the attainment of his seventieth birthday, defendant Allen will notify the Board of Elections of Philadelphia County that the judge's office is vacant and is one for which candidates are to be nominated, and further defendant Allen will not certify for inclusion on the ballot for retention any of the plaintiffs after he has reached his seventieth birthday.

 30. If each of the plaintiffs is forced to retire upon the attainment of his seventieth birthday, defendant Casey will not pay him a salary for full-time judicial service.

 31. If each of the plaintiffs is forced to retire upon the attainment of his seventieth birthday, defendant Barbieri will cause said judge to be removed from the State Judicial payroll and will certify to the Governor and Secretary of the Commonwealth a vacancy in that judge's office.

 32. Each of the plaintiffs is presently physically and mentally capable of performing and fulfilling his judicial duties.

 33. Chief Justice Eagen, age 71, Justice O'Brien, age 75, and Justice Roberts, age 72, are all presently in active service on the Supreme Court of Pennsylvania under the grandfather clause and will not be required to retire until the end of their respective terms. The term of office and active service of Chief Justice Eagen expires on the first Monday in January 1981, for Justice O'Brien in 1983 and Justice Roberts in 1984.

 35. Between January 1, 1969, and the present, every judge who has reached the age of 70 while in office, and requested assignment to duties as a senior judge was accepted as a senior judge and served as a senior judge.

 36. From 1968 to the present there has been and continues to be a shortage of judicial manpower in Pennsylvania.

 37. Senior judges like active judges can be assigned duties in any county in the Commonwealth.

 38. Judge Lipez of the Court of Common Pleas of Lycoming County who has been retired because of reaching the age of 70 has been assigned duties as a Senior Judge on the Superior Court of Pennsylvania, and the following Superior Court Judges who have been retired because of reaching the ...


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