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State Lawmakers Mull Changes to Mandatory Retirement Age for Judges

The state constitutional mandate that Pennsylvania judges retire by age 70 is the subject of arguments before the Supreme Court next month, but that's not stopping state lawmakers from taking a swing at modifying mandatory retirement.

Given average life expectancy and the kinds of complex work that might be easier for people long on life experience, one House Republican is asking: Why are we kicking judges off the bench at 70?

"I've seen men and women in their courtrooms and in their communities, and I just have a hard time believing that on your 71st birthday, suddenly you're incompetent to continue as a judge," said Rep. Kate Harper (R-Montgomery). "In fact, I think the opposite might be true."

Harper has introduced legislation to move the age limit back by five years. At a committee hearing Thursday, she noted the concerns of some that older judges might be afflicted with Alzheimer's or dementia or another condition that may affect their judgment.

A doctor was in the House to offer a closer look at cognitive deterioration.

"In animal studies, brain cells with advancing age can lose 45 percent of spiny dendrites, which are things that communicate with other neurons, and they're responsible for learning and remembering new things," said Dr. Thomas Weida, a professor at the Penn State Hershey-Medical Center and College of Medicine.

"However, the stubby dendrites, which are responsible for things which have been known for years, suffer no decline," he said. "Hence, new memories may be more difficult to retain with age, but knowledge and expertise remain intact, oftentimes well into the 80s."

Weida was just picking up where Harper left off.

"I do not believe we need a hard and fast rule that bars everyone from over the age of 70 from serving," she told House lawmakers. "That's why we have a Judicial Conduct Board."

The board, she went on to say, investigates complaints made about judges and considers removing them from the bench.

But Harper's own legislation would create a new hard and fast rule to force Pennsylvania judges to retire at the age of 75. Adding just five years to the age limit, she said, is her way of proposing an incremental change that might be better received by state lawmakers.

Ken Gormley, dean of the Duquesne University School of Law, provided his own answer for why 75 would be a better, more balanced cut-off. Anything beyond a five-year change, he said, would put too firm a clamp on new blood coming into the judicial branch.

"I'm extremely sensitive to the fact that younger men and women entering the profession need to have an opportunity to advance and ultimately to have a chance to serve the commonwealth through the election or appointment as a judge," Gormley said.

The legislation is similar to a state Senate bill that would get rid of the mandatory retirement age completely. Both bills are amendments to the state Constitution — they would need to pass the state Legislature in two consecutive sessions and then clear a voter referendum.

Other legal challenges to mandatory retirement are pending. The Supreme Court is scheduled to hear arguments in one case next month.

A Senate bill would abolish the age limit for state judges completely. Neither the Pennsylvania Bar Association nor Pennsylvanians for Modern Courts, a court reform group, have taken a position on the measure.