JUDGE ROCHELLE S. FRIEDMAN, JUDGE ALAN M. RUBENSTEIN, IN HER AND HIS OFFICIAL CAPACITY, ROBERT H. RIEFLE, BONITA L. DICARLO AND THOMAS A. BECKLEY, INDIVIDUALLY AND ON BEHALF OF QUALIFIED ELECTORS IN THE COMMONWEALTH OF PENNSYLVANIA, Petitioners
GOVERNOR THOMAS W. CORBETT JR., COURT ADMINISTRATOR ZYGMONT A. PINES, SECRETARY CAROL T. AICHELE, AND TREASURER ROBERT M. MCCORD, EACH IN THEIR OFFICIAL CAPACITY, Respondents
Plenary Jurisdiction assumed from Commonwealth Court at No. 81 MD 2013
On February 15, 2013, Senior Judge Rochelle S. Friedman, Judge Alan M. Rubenstein, and several individuals alleging a status as qualified electors who voted for Judge Friedman and/or Judge Rubenstein, filed in the Commonwealth Court a Petition for Review in the nature of a Complaint for Declaratory and Equitable Relief (the "Complaint"). Petitioners raised a single cause of action under Article I, Sections 1 and 26 of the Pennsylvania Constitution, claiming that Article V, Section 16(b) of the state charter – which mandates that judges retire on December 31st of the year they turn 70 – should be struck down as contrary to Pennsylvania's Declaration of Rights, that is, Article I of the state Constitution. The jurists contended that Section 16(b) deprives them of their inherent right to be free of age-based discrimination; the electors asserted that the provision denies them their right to elect and retain jurists of their choice and to have those candidates serve to the end of their commissions. Petitioners sought relief in the form of a declaration that the retirement mandate is unconstitutional, as well as an injunction restraining the named Commonwealth officials from enforcing it. Respondents lodged preliminary objections in the nature of a demurrer, and Petitioners answered. The parties filed legal memoranda in support of their respective positions.
On May 10, 2013, having determined the existence of a substantial overlap among the issues raised in this case and two other matters which were pending in this Court – Driscoll v. Corbett, 19 MAP 2013, and Tilson v. Corbett, 20 MAP 2013 – we assumed plenary jurisdiction over the present dispute on our own motion. See 42 Pa.C.S. §726. Shortly thereafter, Petitioners filed an Application for Relief, requesting that we appoint a special master to "receive relevant testimony and evidence and allow Petitioners to create a developed record in support of the claims raised" in their Complaint. Application for Relief, at 12-13. In particular, Petitioners sought to introduce evidence supporting their claims that: mandatory retirement at age 70 is irrational; older Pennsylvania citizens are living and working longer than their 1968 counterparts; the compensation package available to senior judges is less valuable than that provided to commissioned judges; and individuals who voted for the judges in question believed that they were electing the judges to a ten-year term. The Commonwealth opposed the Application for Relief, arguing that the Complaint's allegations raise pure questions of law, and hence, no factual record is necessary.
After these pleadings were filed in our Court, we resolved the Driscoll and Tilson matters jointly, explaining that, in view of the "inalienable and indefeasible right [of the people] to alter . . . their government . . . as they may think proper, " Pa. Const. art. I, §2, "a revision to the organic law of the Commonwealth will only be deemed to violate the constitution that it amends (if at all) where the challenger has shown – clearly, palpably, and plainly – that the amendment is so unreasonable as to be considered 'irrational.'" Driscoll v. Corbett, Pa. __, __, __ A.3d __, __, 2013 WL 2981713, at *12 (June 17, 2013) (quoting Gregory v. Ashcroft, 501 U.S. 452, 471, 111 S.Ct. 2395, 2406 (1991)). We determined that Article V, Section 16(b) did not fall into that category. To the contrary, we agreed with the highest appellate court of a sister state considering a similar constitutional provision, to the effect that:
[T]he amendment at issue . . . not only provides for the retirement of judges, but for their re-appointment as well. The restriction therefore results in an increase of judicial manpower by bringing in younger judges, while retaining the services of willing and able retired judges. It permits the orderly attrition of judges and promotes the advancement of general considerations of judicial efficiency. This insures the fitness of the judiciary as a whole and provides a judicial system of the highest caliber.
Id. at __, __ A.3d at __, 2013 WL 2981713, at *10 (quoting State ex rel. Keefe v. Eyrich, 489 N.E.2d 259, 264 (Ohio 1986); some internal quotation marks and citations omitted). We continued that, "although we have no doubt that many individual judges would be capable of serving with distinction beyond their mandatory retirement date . . . there are overall systemic goals that are rationally related to valid governmental and societal interests." Id. Ultimately we summarized our reasoning as follows:
[T]here is colorable merit to Petiti1oners' position that, theoretically at least, there is some possibility that a constitutional amendment might impinge on inherent, inalienable rights otherwise recognized in the Constitution itself. Nevertheless, we do 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. Rather, in view of the people's indefeasible right to alter their government as they think proper through amending its basic charter, the mandatory retirement provision for judicial officers is subject to deferential, rational-basis review under both equal protection and due process, and it satisfies that standard. Therefore, although certain societal circumstances may have changed since 1968 when the challenged provision was added to the Constitution . . . the proper approach of conforming the Constitution more closely with Petitioners' vision of how experiential changes should be taken into account is to pursue further amendment to the Pennsylvania Constitution.
Id. at __, __ A.3d at __, 2013 WL 2981713, at *13.
In light of the above, any evidence that Petitioners seek to introduce concerning demographic changes that have occurred since 1968 would have no material effect upon the issue at hand. See generally id. at __, __A.3d at __, 2013 WL 2981713, at *10 ("As for any demographic changes that have taken place since the amendment was adopted in 1968, moreover, they are irrelevant."). Additionally, evidence is unnecessary relative to the claim that the age-70 retirement mandate is irrational, since this claim represents a legal conclusion that we rejected in Driscoll. Furthermore, to the extent the Application may be construed to request an opportunity to submit proofs concerning the understanding or intent of individual voters,  these too would be irrelevant, for several reasons.
First, relying on Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976), we developed in Driscoll that "judges who reach the constitutional retirement age are not elected to 'regular' terms – i.e., six years in the case of a justice of the peace, or ten years in the case of judges and Supreme Court Justices – but instead, to terms that expire early due to the mandatory retirement provision." Driscoll, __Pa. at __, __ A.3d at __, 2013 WL 2981713, at *11. This is a fact of which voters are deemed to be aware, as explained in Firing. See Firing, 466 Pa. at 569, 353 A.2d at 837 (reasoning that, when the plaintiff ran for judicial office, Article V of the Pennsylvania Constitution "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)" (emphasis added)). It follows that, when individual electors voted for the Petitioner judges, they voted for them to serve a term that expired on December 31st of the year the judges turned 70.
Insofar as Petitioners seek to make an evidentiary record demonstrating that they were led to believe otherwise, such a record would be incapable of supporting their claim. In the first place, an uninformed, confused, or otherwise irrational vote "is just as much of a vote as a rational one." Koppel v. N.Y. State Bd. of Elections, 8 F.Supp.2d 382, 386 (S.D.N.Y. 1998); cf. Ulland v. Growe, 262 N.W.2d 412, 416 (Minn. 1978) ("We know of no authority which would allow us to treat the votes of any voters, however ill-informed, as if they were somehow inferior [to] more thoughtfully cast ballots."). Second, to the degree Petitioners predicate their claim on an alleged ballot deficiency, the obvious remedy for such a circumstance, if proven, is to ensure that ballots are more informative. An alleged deficiency in how election authorities present a judicial ballot to the public cannot logically have any effect on the constitutionality of the judicial retirement provision.
Finally, although the right of suffrage has been recognized as "fundamental" and "pervasive of other basic civil and political rights, " Bergdoll v. Kane, 557 Pa. 72, 85, 731 A.2d 1261, 1269 (1999) (quoting Moore v. Shanahan, 486 P.2d 506, 511 (Kan. 1971)), electors do not have an inherent, inviolate, pre-constitutional right to vote for judicial candidates whose terms of office are unaffected by a constitutionally-mandated retirement age. There is nothing in Article I of the organic law to suggest such a concept. Article V sets the term of office, either as a "regular" term, Pa. Const. art. V, §15(a), or as a term that is "not regular" because of mandatory age-70 retirement. Firing, 466 Pa. at 566, 353 A.2d at 836; see Driscoll, __Pa. at __, __A.3d at, 2013 WL 2981713, at *11 ("Since the Constitution provides for mandatory retirement at age 70, the Constitution does not itself provide for the election of any judge for any term that extends beyond the age of 70."). An elector may choose whom to vote for, but the elector is not entitled to the judicial services of the elector's preferred candidate beyond that person's term of office. Cf. id. ("[T]his case is about Petitioners' effort to extend their term beyond the term for which they were elected by nullifying operative terms of the Constitution.").
Accordingly, nothing in the Application for Relief convinces us that a factual record could materially aid this Court in ...