Article VI, section 6, paragraph 3 of the New Jersey Constitution provides that Justices of the Supreme Court and judges of the Superior Court “shall be retired upon attaining the age of 70 years.” Pennsylvania’s Constitution, Article 5, section 16(b), similarly provides that “Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years.” Yesterday, the Supreme Court of Pennsylvania agreed to review arguments by two judges that this mandatory retirement provision violates Article 1 (“Declaration of Rights”) of the Pennsylvania Constitution. That Article includes, in section 26, a provision that “[n]either the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.”
The non-discrimination provision of New Jersey’s Constitution, Article I, section 5, states that “[n]o person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin.” That language is not as broad on its face as the text of Pennsylvania’s non-discrimination provision. Nonetheless, could Article I, section 5, be argued to conflict with New Jersey’s mandatory retirement clause? We will see what the Supreme Court of Pennsylvania, whose Chief Justice is nearing mandatory retirement himself, has to say about the issue under the Pennsylvania Constitution.