SENIOR JUDGE JOHN DRISCOLL, SENIOR JUDGE SANDRA MAZER MOSS, AND JUDGE JOSEPH D. O'KEEFE, Petitioners
THOMAS W. CORBETT, JR., GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, CAROL T. AICHELE, SECRETARY OF THE COMMONWEALTH, AND ZYGMONT A. PINES, COURT ADMINISTRATOR OF THE COMMONWEALTH OF PENNSYLVANIA, Respondents JUDGE ARTHUR TILSON, Petitioner
THOMAS W. CORBETT, JR., GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, CAROL T. AICHELE, SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, AND ZYGMONT A. PINES, COURT ADMINISTRATOR OF THE COMMONWEALTH OF PENNSYLVANIA, Respondents
ARGUED Date: May 8, 2013
Extraordinary Relief was granted from Commonwealth Court at 43 MD 2013
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, JJ.
MR. SAYLOR, JUSTICE
Challenging an express constitutional command and attendant judicial precedent, Petitioners seek to nullify the mandatory retirement provision of the Pennsylvania Constitution applicable to judicial officers.
By way of background, in 1967-68, a limited constitutional convention was convened with the approval of Pennsylvania voters. Its purpose was to consider certain proposed changes to the state charter, including changes to Article V, which pertains to the judiciary. The proposed revisions that emerged from the various committees and subcommittees were subject to public hearings and provided to the full convention for debate and amendment. They were adopted by the convention in March 1968, and ratified by the electorate of Pennsylvania on April 23, 1968.
Article V of the Pennsylvania Constitution was completely rewritten and, as such, effectively replaced Article V of the Constitution of 1874. One feature of the new Article V was a mandate that Pennsylvania jurists retire at a specific age. In particular, Section 16(b), as adopted in 1968, stated: "Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years." Pa. Const. art. V, §16(b) (1968). This language was amended in 2001 to specify that retirement must occur on December 31stof the year the jurist turns 70. See Pa. Const. art. V, §16(b) (2001). After retirement, former jurists may, if they choose – and subject to necessity and approval, see Pa.R.J.A. 701 – be assigned to serve as senior judges, see Pa. Const. art. V, §16(c); 42 Pa.C.S. §4121, for which they are compensated on a per diem basis. See 204 Pa. Code §211.2(h).
Approximately twenty years after the 1967-68 constitutional convention, several judges challenged the validity of Section 16(b)'s age-based retirement mandate on federal and state constitutional grounds. The challenges, which were resolved in Gondelman v. Commonwealth, 520 Pa. 451, 554 A.2d 896 (1989), were unsuccessful on both grounds. Two years later, the United States Supreme Court rejected a similar challenge to a mandatory retirement provision of the Missouri Constitution, pursued under federal constitutional principles. See Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395 (1991).
This year, several groups of Pennsylvania jurists have sought to renew the attack on Article V, Section 16(b) via multiple legal actions commenced in both federal and state courts. In the two proceedings which are the subject of this opinion, the judges lodged complaints in the Commonwealth Court, relating that they were elected, and then retained, to ten-year judicial terms, and that the named Commonwealth officials' enforcement of Section 16(b) would require them to retire against their will prior to the expiration of those terms.
Petitioners raised a single cause of action under the state charter, contending that: Article I protects the fundamental rights of all Pennsylvania citizens; to the extent any other part of the Pennsylvania Constitution is inconsistent with Article I, such provision is invalid; and the Commonwealth would transgress Petitioners' rights guaranteed by Article I by forcing them to retire in compliance with Article V, Section 16(b). Although their contentions are in direct conflict with Gondelman, Petitioners alleged that Gondelman "should no longer obtain" in view of: societal and demographic changes that have taken place in recent years, such as an increase in longevity and a decline in cognitive impairment among older individuals, see Driscoll Complaint at ¶¶58-62; Tilson Complaint at ¶¶56-62; and budgetary concerns that could be ameliorated by allowing judges to delay retirement, thereby decreasing payouts from the state's pension system, see Driscoll Complaint at ¶63; Tilson Complaint at ¶63. Accordingly, Petitioners sought relief in the form of a declaration that Section 16(b)'s retirement mandate is null and unenforceable, as well as a permanent injunction restraining the named Commonwealth officials from enforcing it.
Soon after they initiated the legal proceedings in the Commonwealth Court, Petitioners submitted applications for extraordinary relief to this Court, asking us to assume plenary jurisdiction over the matters. See 42 Pa.C.S. §726. We granted these applications, assumed jurisdiction, and directed the parties to brief the legal issue of whether Article V, Section 16 of the Pennsylvania Constitution violates Petitioners' rights under Article I of the Pennsylvania Constitution. The parties have now briefed the issue and presented oral argument.
In their arguments, Petitioners first address the threshold issue of whether a constitutional amendment that was duly enacted by the people of Pennsylvania can be held invalid as contrary to the Pennsylvania Constitution's Declaration of Rights – that is, Article I of the state charter. Referencing early cases, learned treatises, and the Declaration of Independence (as well as state-level declarations from the late 18thCentury), they develop that certain rights are inherent to mankind and pre-existed the organic document. Petitioners state, therefore, that Article I does not bestow these inherent rights on Pennsylvania citizens, but rather, acknowledges their existence and paramountcy and provides for their continued protection, even against a vote of the majority. Petitioners note, in this respect, that Section 1 of the Declaration of Rights is entitled "Inherent rights of mankind, " and provides:
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
Pa. Const. art. I, §1, quoted in Brief for Petitioners at 18. They additionally observe that Section 25 of the Declaration, titled "Reservation of powers in people, " states:
To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.
Pa. Const. art. I, §25, quoted in Brief for Petitioners at 18-19 (emphasis added by Petitioners). Since the rights listed in Article I are "forever . . . inviolate, " the argument goes, a constitutional amendment that violates them is not constitutionally valid.
In maintaining that Pennsylvania case law recognizes this natural-rights theory, as well as its corollary – that a duly-enacted constitutional amendment can be deemed unconstitutional – Petitioners rely heavily on Stander v. Kelley, 433 Pa. 406, 250 A.2d 474 (1969), a controversy in which several taxpayers challenged the validity of the 1968 version of Article V as violative of the separation of powers doctrine. Petitioners highlight that, although the specific issue addressed in Stander pertained to whether such a challenge was justiciable in the post-enactment timeframe, the Court reaffirmed the inherent-rights precept recognized in earlier cases by stating:
These cases demonstrate that [c]onstitutionally ordained rights must and will be protected by the Courts against the will as well as against the vote of a majority of the people. . . . "One's right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be.
Id. at 413, 250 A.2d at 478 (quoting W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185-86 (1943)) (citation and footnote omitted; emphasis removed; second ellipsis in original), quoted in Brief for Petitioners at 17.
Petitioners recognize that their theory in the above regards was rejected roundly in Gondelman. See Gondelman, 520 Pa. at 467, 554 A.2d at 904 (indicating that "[i]t is absurd to suggest that the rights enumerated in Article I were intended to restrain the power of the people themselves"). They contend, however, that that case was wrongly decided and should be overruled.
The second plank of Petitioners' argument is that the retirement provision in Article V, Section 16(b) violates their inherent right to equal protection of the laws, tracing the right primarily to Article I, Sections 1 and 26. See Pa. Const. art. I, §26 ("Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right."). They reason that, under the equal protection precept, different types of classifications are subject to different levels of scrutiny, with suspect classifications being strictly scrutinized, "sensitive" classifications being subject to heightened or intermediate scrutiny, and other legislative classifications subject to rational-basis review. See Brief for Petitioners at 26 (citing Love v. Borough of Stroudsburg, 528 Pa. 320, 325, 597 A.2d 1137, 1139 (1991); Small v. Horn, 554 Pa. 600, 615, 722 A.2d 664, 672 (1998)). To determine which level of scrutiny should apply, Petitioners analyze age-based classifications under a four-pronged test recently utilized by one federal appellate court, see Windsor v. United States, 699 F.3d 169, 181 (2d Cir.) (classification based on sexual orientation), cert. granted, 133 S.Ct. 786 (2012), and conclude that age is a sensitive classification under that standard, thus implicating intermediate scrutiny. This means that the legislative classification, to survive, must be substantially related to an important governmental interest. See James v. SEPTA, 505 Pa. 137, 147, 477 A.2d 1302, 1307 (1984).
In all events, Petitioners argue that the mandatory retirement provision fails both intermediate and rational basis review, for three reasons: first, they aver that in the time since the constitutional amendment was passed, the incidence of cognitive decline has decreased substantially; second, they proffer that the continuance of the senior-judge system ensures there will be "sufficient judicial manpower" without the need for forced retirement at age 70, Brief for Petitioners at 36; see infra note 7; and third, they state that Article V, Section 18's procedures for removing incapacitated judges renders the mandatory retirement age unnecessary. In light of these factors, Petitioners allege that Article V, Section 16(b)'s mandatory retirement age merely serves to discriminate against, and stigmatize, older judges, and to provide less compensation to senior judges than to their younger counterparts. In this latter respect, according to the present allegations, senior judges' overall compensation package is ...