John Morganelli, district attorney for Northampton County in the Lehigh Valley, sent an open email letter last night questioning efforts by senior Pennsylvania judges to challenge the state's 70-year mandatory retirement limit. The people ought to vote on any such changes the state constitution; it's a conflict of interest for judges to re-set their own service limits, Morganelli believes.
"I think it’s terrible what’s going on," Morganelli told me. "If we put a big flashlight on it I hope they’ll back down." The letter is titled Pennsylvania's Constitutional Crisis: Will Judicial Self-Interest Trump the Constitution? Here's the text:
Judges are sworn to uphold the Constitution and protect our constitutional form of government. But what happens when judicial self-interest collides with the Constitution? Pennsylvania may be on the precipice of a constitutional crisis.
In 1989 the Pennsylvania Supreme Court upheld Pennsylvania's Constitution which prohibits a judge to remain in office after the age of 70. Since then, numerous judges have retired at 70.
But recently, a number of jurists filed lawsuits challenging the restriction. Then, the Chief Justice, who coincidentally turns 70 next year, announced that he would seek retention for another 10 year term on the high court even though next year would be his last if the age restriction remains in place.
Next, the eyebrows of many attorneys were raised when the Supreme Court reached down, bypassing the lower court, and agreed to hear and expedite one of those cases.
Is there anyone who actually believes that despite the clear precedent, all these judges suddenly woke up one morning and, independently of each other, decided to sue?
When these actions were filed, many lawyers questioned “why” when similar challenges had always failed. A previous panel of the Supreme Court upheld the age restriction in the Constitution which was approved by the people at the ballot box. In 1991, the US Supreme Court upheld a similar restriction in Missouri's state constitution.
The question is: What has changed? And, what is the rush?
Judges have been retiring for decades at 70. Pennsylvania judges campaigned knowing their terms were limited by mandatory retirement.
Most of them would not have had an opportunity to be a judge but for the age restriction which forced judges to retire and created vacancies. Now, some want to change the rules and strike down the Constitution on the way.
Many believe that the high court wants a speedy decision so that a potential ruling can benefit the Chief Justice and the other 4 Justices who are turning 70 in the next few years.
All of this has fueled speculation by the legal community that the litigation may have been encouraged by a member of the Supreme Court itself.
Will any of the Justices recuse themselves? Or, will the court assert that the "Rule of Necessity" permits them to hear this case even though all of the Justices have a personal and financial interest in setting aside the prohibition?
The "rule of necessity" is an exception to the disqualification of a judge who has a conflict of interest. But it only applies when no other tribunal is available to hear the dispute. Here, there exists a companion federal action which has now been stayed to allow the Supreme Court to act first and make moot the federal case.
Interestingly, the Supreme Court has ordered the lawyers to specifically address Article I of the Pennsylvania Constitution, Declaration of Rights which provides in Section 26 that neither the Commonwealth nor any political subdivision may discriminate against any person in the exercise of any "civil right."
However, the Supreme Court previously held that the age restriction did not violate the Declaration of Rights Discrimination provision. It recognized that that provision was intended to restrain "government", and that the rights enumerated in the Declaration of Rights do not restrain the power of the people themselves as expressed in the Constitution. Gondelman v. Commonwealth 554 A2d 896 (1989).
This provision was intended to prevent "government" from transgressing individuals' basic "civil rights". The US Supreme Court in 1991 settled the question that being a judge is not a fundamental right. Gregory v. Ashcroft 501 US 454.
Nevertheless, the Supreme Court now may be poised to overrule years of precedent by proclaiming that the age restriction is inconsistent with the discrimination clause thus allowing them to get what they want, trample on the Constitution, and at the same time maintain that they are actually upholding the constitution.
It appears imprudent for the Supreme Court to hear this case. This court has been tarnished by the recent conviction of one of the Justices. The Pennsylvania judiciary in general has been harmed by the "Kids for Cash" scandal, the Philadelphia Traffic Court report as well as other matters. The integrity of our courts and of the judges who sit on them is fundamental to our system.
Taking this case and setting aside the Constitution will be harmful. The Justices sit at the pinnacle of power, and it is understandable how some may not want to relinquish it. Like it or not, our Constitution, passed by the people sets age limits on the ability to exercise that power.
For those who believe that the age restriction is subject to fair debate, the proper method is to amend Pennsylvania' s Constitution through the process established: approval by two consecutive sessions of the legislature, and approval of the people at the ballot box. Setting aside Pennsylvania's Constitution via judicial fiat by Justices with a personal and financial interest in the outcome is dangerous and wrong. Only time will tell whether self-interest trumps the Constitution.
-- John M. Morganelli is the District Attorney of Northampton County and Past President of the Pennsylvania District Attorneys Association. He was the Democratic candidate for Pennsylvania Attorney General in 2008.