Efforts underway to end mandatory retirement age for judges

Arthur R. Tilson thoroughly enjoys being a Montgomery County judge. He likes figuring out a tough legal question, helping negotiate a settlement, dealing with lawyers. It's satisfying work, he said, a bit like solving a complicated crossword puzzle.

But Tilson, a Common Pleas Court judge since 2001, will be out of a job at the end of the year simply because he is now 70, the mandatory retirement age for state court judges in Pennsylvania.

And that, he believes, is unfair.

"It would be different if I couldn't keep myself together," said Tilson, noting that, at least as far as he is concerned, 70 is the new 50. He is in good health, he said, plays golf every weekend, and is more than able to maintain a brisk work schedule.

So Tilson joined a growing movement within the judiciary that is trying to get rid of mandatory retirement for judges. He became one of a dozen judges who filed suit in Pennsylvania, arguing that the requirement is tantamount to age discrimination. Last week, the state Supreme Court dealt him and others a setback by rejecting the suit.

Legislation also has been introduced in Harrisburg to allow judges to serve longer. And at least 15 other states, including New Jersey and New York, are weighing the question of whether a judge should step down at a certain age.

"It is a big issue," said Greg Hurley, a senior analyst with the National Center for State Courts, a nonprofit court-improvement organization that is tracking developments in the various states trying to eliminate a required retirement age. "It's pretty contentious for a lot of judges."

Judith S. Kaye, the former chief judge of the New York Court of Appeals who had to retire in 2008 when she turned 70, said more and more good judges were being forced off the bench way too early. "We lose some of our very best people," said Kaye, who now keeps a busy schedule at a law firm.

While federal judges have lifetime tenure, about 30 states have mandatory retirement ages. In Pennsylvania, the requirement was added to the state constitution in 1968 - long before cholesterol drugs, bypass surgery, and a slew of other medical advancements began to increase life expectancy.

In its decision last week, the state Supreme Court ruled that the "proper approach" to eliminate the requirement is to change the state constitution. The justices - four of whom turn 70 during the next five years - said the legal precedent in both the state Supreme Court and the U.S. Supreme Court was decidedly against the judges.

So now the focus will shift to two other arenas.

Two bills are in the state House and Senate. The House bill would raise the retirement age to 75; the Senate bill would abolish any mandatory retirement age. Both are now in their respective Judiciary Committees. Whatever emerges would have to be approved by both chambers in two consecutive sessions and then be placed on the ballot for voters to decide.

In federal court, Common Pleas Court Judges Benjamin Lerner and John Herron of Philadelphia and Leonard Zito of Northampton County are plaintiffs in a suit filed in December. They hope to build a record that will eventually entice the U.S. Supreme Court, which ruled in 1991 that states were free to set retirement ages for their judges, to take a new look at the issue.

The age of 70 "is awfully young these days" for judges to be required to retire, said Lerner, who turned 70 in 2011.

Yet Lerner, a judge since 1996, is still in the courtroom.

He serves as a senior judge, getting paid $534 a day for a maximum of 10 court days a month - even though, he said, he usually spends 18 to 22 days in court each month - and still has plenty of other work to do in chambers.

He would rather be back on the books as a full-time judge, he said.

"I'm lucky that I love my job so much," said Lerner.

Bruce Ledewitz, a constitutional law professor at Duquesne University, said he doubted that the judges would win the federal case. Changing the constitution, he said, is the correct way to proceed. "There is no other route to make this change in Pennsylvania," he said.

He said the judges who reach 70 could still work part time as senior judges, and they have a good pension plan. "It's hard to feel too bad for them," Ledewitz said.

In New Jersey, a bill that would extend the mandatory retirement age to 75 for some state court judges is awaiting a review by the Assembly Judiciary Committee.

Assemblyman Erik Peterson (R., Hunterdon), who proposed the legislation, said the measure would enable tax, administrative law, and workers' compensation judges to serve beyond age 70, the current mandatory retirement age in New Jersey.

He said the legislation also would provide a framework for the constitutional change required to lift the retirement age for state Superior Court judges and Supreme Court justices, a mandate that has been in place since 1946.

"It's just good, common-sense legislation," said Peterson, adding that the measure would likely save the state money by allowing judges to pay into their retirement funds for five more years before starting to draw their pensions.

Tilson, meanwhile, said he was disappointed by the Pennsylvania Supreme Court's rejection of the lawsuit he and others filed. And while he hopes the federal lawsuit ultimately will be successful, that process would likely take several years - and not be resolved in time to keep him on the bench as a full-time judge.

Tilson turned 70 in May and under the state constitution must step down by the end of this year. But he said he believes he still has a lot to contribute and hopes to be able to work as a senior judge.

"I do love being a judge," he said.

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