Judges Planto Fight Pa. on Forcedretirement

Article excerpt

After nearly two decades on the bench, Westmoreland County Juvenile Court Judge John J. Driscoll said he does not want to be forced out of a job simply because he celebrated his 70th birthday in February.

On Jan. 1, Driscoll will have to step aside because Pennsylvania judges are required to retire at the end of the year in which they turn 70. His forced departure will come three years before his 10- year term expires in 2016.

Driscoll will not go without a fight. He and five other judges have filed a lawsuit in Commonwealth Court seeking the right to decide on their own when to retire.

"I joined in this action because I really love my work," Driscoll said on Thursday, a day after Philadelphia attorney Robert C. Heim filed the civil action in Harrisburg against state officials. "I feel very useful, and if this mandatory age provision is unconstitutional, I would not want to have my time and work terminated by something that is unconstitutional."

The judges contend the mandatory retirement provision is age discrimination that violates their constitutional rights. The suit notes that by 2030, there will be more than 75 million Americans 65 and older. "As the population ages, the incidence of cognitive decline has decreased remarkably in recent years," the suit asserts.

Joining Driscoll are Northampton County Judge Leonard N. Zito and Philadelphia Judges John W. Herron, Benjamin Lerner, Sandra Mazer Moss and Joseph D. O'Keefe. Lerner was forced to retire in January but works part time as a senior judge. The others are nearing 70 and will be forced to quit before the end of their 10-year terms.

Gov. Tom Corbett is named as the lead defendant.

"We have no comment on this pending litigation, but we expect that the Office of Attorney General will be responding by way of appropriate filings on behalf of the governor and the secretary of the commonwealth," said Janet Kelley, a Corbett spokeswoman.

The judges want the court to toss the state constitution's mandatory retirement provision, which went into effect in 1969.

"The world has changed," Heim said. "Seventy is not old. All of them feel, very strongly, their judging ability now is as good, or better, than it has ever been. …