Judges Say 70 Isn't Too Old For the Bench

Northampton County Judge Leonard Zito and five other judges in Pennsylvania are suing the state over a rule that forces judges to retire at age 70.

Zito, who turns 70 on Jan. 26, and the other judges say the mandatory retirement age violates the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution and Article I of the state Constitution.

The suit, filed Wednesday in state Commonwealth Court in Harrisburg, names as defendants Gov. Tom Corbett, secretary of the commonwealth Carol Aichele, state treasurer Rob McCord and state court administrator Zygmont Pines.

An aide in Zito’s office at the Northampton County Courthouse said Thursday the judge is deferring comment to Philadelphia attorney Robert Heim, who filed the suit and is serving as pro bono counsel for the judges.

Four of the other five judges – John Herron, Benjamin Lerner (a senior judge), Sandra Mazer Moss and Joseph O’Keefe -- serve in the Philadelphia Court of Common Pleas. The fifth judge, John Driscoll, sits on Westmoreland County Court.

In a telephone interview Thursday, Heim said the age 70 rule was inserted into the state Constitution in 1969. The rule says a judge must retire at the end of the calendar year in which the judge turns 70. Zito, for instance, would have to retire by the end of 2013.

”The time has come to change the law," Heim said. “In today’s world, the rate of decline in people is much, much less. They retain analytical ability. You’ve heard that 70 is the new 50. There’s a lot of truth to that.”

He said changing the law also would affect judges younger than 70.

”In one sense, 65 or 67 or 68, you’re coming up on 70. In that regard, they’re all affected. It’s just a matter of when you’re affected."

Heim said controversy surrounded the age 70 rule when it was enacted 43 years ago. At the time, there was “a sense that a lot of good judges would get knocked out,” he said.

Heim pointed out the state Constitution separately provides for the removal of incapacitated judges, “if a judge is incapacitated for any reason.”

He also covered this point in a news release issued when the suit was filed. He said that because of the rule on incapacitated judges, “the mandatory retirement provision only serves to force capable judges to retire.”

Other points in the release include:

• Other officers and employees of the state are not forced to retire due to age.

• Judges older than 70 are able to work as “senior” judges but are paid less than judges not forced to retire. In Lehigh County, for instance, senior district judges have been serving in the Allentown seat formerly held by District Judge Maryesther Merlo, who was removed in October 2011 for chronic absenteeism, tardiness and bizarre behavior, according to The Morning Call.

In the phone interview, Heim said he expects the suit’s judicial process -- ncluding a likely appeal of Commonwealth Court’s ruling to the state Supreme Court -- to take about a year.