The Morning Call reports a 69 years old, Northampton County Judge Leonard Zito likes his job so much that he is suing the state to keep it.
Under the Pennsylvania Constitution, judges are forced to retire at the end of the year in which they turn 70. But Zito and five other state jurists want the courts to toss that, arguing their age has nothing to do with their ability to do their jobs.
“In today’s world, there is no good reason to think that judges who are 70 are not equally competent as judges who are younger,” attorney. Robert Heim said in announcing the judges’ lawsuit, which was filed Nov. 14 in Commonwealth Court.
The suit, which names Gov. Tom Corbett and other state administrators, claims that the mandatory retirement age is discriminatory and violates constitutional rights to equal protection and due process of the law. It notes that people are living longer and healthier, and argues that 70 is no longer the barrier it once was.
Zito, who is known in the courthouse as a workhorse, is slated to step down at the end of 2013, six years before the decade-long term he was elected to ends. He declined through his office to comment.
Four of the other judges who sued — three from Philadelphia, one from Westmoreland County — are scheduled to retire in 2013, 2014 or 2015, while a fifth from Philadelphia was force to retire this year.
But for the judges to prevail in their suit, they have a steep hill to climb. In 1989, the state Supreme Court upheld the mandatory retirement age for judges. The federal Supreme Court also did so in a 1991 Missouri case, rejecting the same constitutional arguments that the new suit makes.
“Because it is an unfortunate fact of life that physical and mental capacity sometimes diminish with age, the people may wish to replace some older judges in order to satisfy the legitimate, indeed compelling, public interest in maintaining a judiciary fully capable of performing judges’ demanding tasks,” then-Supreme Court Justice Sandra Day O’Connor wrote.
Nationwide, 33 states plus the District of Columbia have mandatory retirement for judges, according to the National Center for State Courts. Most set it at 70, some at 75. Vermont judges have until they are 90.
The lawsuit contends that Pennsylvania courts have other mechanisms to remove judges who are unfit for their duties. By forcing everyone to step down at 70 regardless of their fitness, the state deprives competent judges from completing the terms for which voters chose them, the suit said.
The suit also notes that after the retirement age, many jurists continue on the bench as senior judges, who are paid for each day they preside. But their $522 per diem is far less than the $169,541 annual salary that a county judge receives, the suit says.
Absent a ruling overturning precedent, the age limit could only be lifted by amending the state constitution. That’s a lengthy process that requires approval by both houses of the Legislature in two successive sessions, plus by voters in a state referendum.
In March, Sen. Lisa Boscola, D-Northampton, proposed an amendment raising the retirement age to 75, a bill that remains in committee.