Justice SAYLOR.
Challenging an express constitutional command and attendant judicial precedent, Petitioners seek to nullify the mandatory retirement provision of the Pennsylvania Constitution applicable to judicial officers.
By way of background, in 1967-68, a limited constitutional convention was convened with the approval of Pennsylvania voters. Its purpose was to consider certain proposed changes to the state charter, including changes to Article V, which pertains to the judiciary. The proposed revisions that emerged from the various committees and subcommittees were subject to public hearings and provided to the full convention for debate and amendment. They were adopted by the convention in March 1968, and ratified by the electorate of Pennsylvania on April 23, 1968.
Article V of the Pennsylvania Constitution was completely rewritten and, as such, effectively replaced Article V of the Constitution of 1874. One feature of the new Article V was a mandate that Pennsylvania jurists retire at a specific age. In particular, Section 16(b), as adopted in 1968, stated: "Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years." PA. CONST. art. V, § 16(b) (1968). This language was amended in 2001 to specify that retirement must occur on December 31st of the year the jurist turns 70. See PA. CONST. art. V, § 16(b) (2001). After retirement, former jurists may, if they choose — and subject to necessity and approval, see Pa.R.J.A. 701 — be assigned to serve as senior judges, see PA. CONST. art. V, § 16(c); 42 Pa.C.S. § 4121, for which they are compensated on a per diem basis. See 204 Pa.Code § 211.2(h).
Approximately twenty years after the 1967-68 constitutional convention, several judges challenged the validity of Section 16(b)'s age-based retirement mandate on federal and state constitutional grounds. The challenges, which were resolved in Gondelman v. Commonwealth, 520 Pa. 451, 554 A.2d 896 (1989), were unsuccessful on both grounds. Two years later, the United States Supreme Court rejected a similar challenge to a mandatory retirement provision of the Missouri Constitution, pursued under federal constitutional principles. See Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991).
This year, several groups of Pennsylvania jurists have sought to renew the attack on Article V, Section 16(b) via multiple legal actions commenced in both federal and state courts. In the two proceedings which are the subject of this opinion, the judges lodged complaints in the Commonwealth Court, relating that they were elected, and then retained, to ten-year judicial terms, and that the named Commonwealth officials' enforcement of Section 16(b) would require them to retire against their will prior to the expiration of those terms.
Soon after they initiated the legal proceedings in the Commonwealth Court, Petitioners submitted applications for extraordinary relief to this Court, asking us to assume plenary jurisdiction over the matters. See 42 Pa.C.S. § 726. We granted these applications, assumed jurisdiction, and directed the parties to brief the legal issue of whether Article V, Section 16 of the Pennsylvania Constitution violates Petitioners' rights under Article I of the Pennsylvania Constitution.
In their arguments, Petitioners first address the threshold issue of whether a constitutional amendment that was duly enacted by the people of Pennsylvania can be held invalid as contrary to the Pennsylvania Constitution's Declaration of Rights — that is, Article I of the state charter. Referencing early cases, learned treatises, and the Declaration of Independence (as well as state-level declarations from the late 18th Century), they develop that certain rights are inherent to mankind and pre-existed the organic document. Petitioners state, therefore, that Article I does not bestow these inherent rights on Pennsylvania citizens, but rather, acknowledges their existence and paramountcy and provides for their continued protection, even against a vote of the majority. Petitioners note, in this respect, that Section 1 of the Declaration of Rights is entitled "Inherent rights of mankind," and provides:
PA. CONST. art. I, § 1, quoted in Brief for Petitioners at 18. They additionally observe that Section 25 of the Declaration, titled "Reservation of powers in people," states:
PA. CONST. art. I, § 25, quoted in Brief for Petitioners at 18-19 (emphasis added by Petitioners). Since the rights listed in Article I are "forever ... inviolate," the argument goes, a constitutional amendment that violates them is not constitutionally valid.
In maintaining that Pennsylvania case law recognizes this natural-rights theory, as well as its corollary — that a duly-enacted constitutional amendment can be deemed unconstitutional — Petitioners rely heavily on Stander v. Kelley, 433 Pa. 406, 250 A.2d 474 (1969), a controversy in which several taxpayers challenged the validity of the 1968 version of Article V as violative of the separation of powers doctrine. Petitioners highlight that, although the specific issue addressed in Stander pertained to whether such a challenge was justiciable in the post-enactment timeframe, the Court reaffirmed the inherent-rights precept recognized in earlier cases by stating:
Id. at 413, 250 A.2d at 478 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185-86, 87 L.Ed. 1628 (1943)) (citation and footnote omitted; emphasis removed; second ellipsis in original), quoted in Brief for Petitioners at 17.
Petitioners recognize that their theory in the above regards was rejected roundly in Gondelman. See Gondelman, 520 Pa. at 467, 554 A.2d at 904 (indicating that "[i]t is absurd to suggest that the rights enumerated in Article I were intended to restrain the power of the people themselves"). They contend, however, that that case was wrongly decided and should be overruled.
The second plank of Petitioners' argument is that the retirement provision in Article V, Section 16(b) violates their inherent right to equal protection of the laws, tracing the right primarily to Article I, Sections 1 and 26. See PA. CONST. art. I, § 26 ("Neither 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."). They reason that, under the equal protection precept, different types of classifications are subject to different levels of scrutiny, with suspect classifications being strictly scrutinized, "sensitive" classifications being subject to heightened or intermediate scrutiny, and other legislative classifications subject to rational-basis review. See Brief for Petitioners at 26 (citing Love v. Borough of Stroudsburg, 528 Pa. 320, 325, 597 A.2d 1137, 1139 (1991); Small v. Horn, 554 Pa. 600, 615, 722 A.2d 664, 672 (1998)). To determine which level of scrutiny should apply, Petitioners analyze age-based classifications under a four-pronged
In all events, Petitioners argue that the mandatory retirement provision fails both intermediate and rational basis review, for three reasons: first, they aver that in the time since the constitutional amendment was passed, the incidence of cognitive decline has decreased substantially; second, they proffer that the continuance of the senior-judge system ensures there will be "sufficient judicial manpower" without the need for forced retirement at age 70, Brief for Petitioners at 36; see infra note 7; and third, they state that Article V, Section 18's procedures for removing incapacitated judges renders the mandatory retirement age unnecessary. In light of these factors, Petitioners allege that Article V, Section 16(b)'s mandatory retirement age merely serves to discriminate against, and stigmatize, older judges, and to provide less compensation to senior judges than to their younger counterparts. In this latter respect, according to the present allegations, senior judges' overall compensation package is inferior to that of commissioned judges because their pay depends on legislative appropriations, and they do not receive various fringe benefits available to commissioned judges. See Driscoll Complaint at ¶¶ 26-32; Tilson Complaint at ¶¶ 24-30.
The Commonwealth initially disputes the concept that the Declaration of Rights amounts to what it terms a "super-constitution" to which all other provisions of the state charter must conform. It emphasizes that this Court addressed the same argument in Gondelman and considered the position "absurd," since Article V, Section 16(b) arises from the same source as the Declaration of Rights: the people themselves. The Commonwealth asserts that this is particularly true inasmuch as reforming the state government is one of the rights protected by Article I:
PA. CONST. art. I, § 2 (emphasis added). The Commonwealth views the 1968 amendments as an example of "altering" or "reforming" the government, and urges more
Alternatively, the Commonwealth contends that the retirement provision does not violate the right to equal protection or due process under conventional measures. It states that the equal protection guarantee in the Pennsylvania Constitution is analyzed under the same standards used by the United States Supreme Court when reviewing similar claims under the Fourteenth Amendment, see Commonwealth v. Albert, 563 Pa. 133, 138, 758 A.2d 1149, 1151 (2000), and denies that any "fresh analysis" (as suggested by Petitioners) is needed to determine what level of scrutiny should apply. In this respect, the Commonwealth suggests that this Court and the United States Supreme Court have established that rational basis review applies to age-based legislative classifications, see id. at 140, 758 A.2d at 1152; Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976), and that, under Nixon, individuals have no fundamental right to work in a particular occupation. See supra note 4. Thus, the Commonwealth contends that rational basis, and not intermediate or heightened scrutiny, is the proper standard for assessing the mandatory retirement provision.
Under that standard, the Commonwealth avers, Section 16(b) passes scrutiny, as the Gondelman Court determined when resolving the federal challenge. The Commonwealth recounts the explanation provided in Gondelman and Malmed v. Thornburgh, 621 F.2d 565 (3d Cir. 1980), that the mandatory retirement age, together with the provision for retired jurists to participate as senior judges, rationally furthers important statewide objectives pertaining to the functioning of the judiciary as a whole, see Gondelman, 520 Pa. at 462, 554 A.2d at 901; Malmed, 621 F.2d at 575 ("The provision does not use age seventy to reach a conclusion about individual judges. It uses that age to further important system-wide objectives."), and that such goals were set forth in the Judiciary Subcommittee report and in the convention floor debates.
The Commonwealth also takes issue with any suggestion by Petitioners that the passage of time has eroded the original justification for Section 16(b), arguing that "[a] similar that-was-then-this-is-now argument" was rejected in Gondelman. The Commonwealth states, in this respect, that Gondelman deemed societal changes since 1968 to be irrelevant to the equal protection analysis on the grounds that, in order to pass the rational-basis test, the method selected by the people need not be the most effective or efficient means of achieving the governmental objective involved. See Gondelman, 520 Pa. at 463, 554 A.2d at 902. The Commonwealth adds that Petitioners' factual assertions in this regard are better made to the Legislature, which can initiate a remedy in the form of a new constitutional amendment. See Brief for Commonwealth at 22 (indirectly quoting Reichley ex rel. Wall v. N. Penn Sch. Dist., 533 Pa. 519, 529, 626 A.2d 123, 129 (1993) ("The adversarial judicial system is not an appropriate forum for analyzing whether ... legislation works well or poorly.... If a statute does not work as expected, the legislature is the appropriate body to make the judgment and enact corrective legislation.")); see also Gondelman, 520 Pa. at 463-64, 554 A.2d at 902 ("If the selected method is not the most effective or efficient method to achieve the State objective, the people may remedy that by amending that provision.").
Responding to Petitioners' substantive due process claim, the Commonwealth relies on Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976), for the position that a judge's term expires upon his or her retirement. See id. at 566, 353 A.2d at 836 (concluding that Article V, taken as a whole, reveals an intent on the part of its framers that the term of a mandatorily-retired jurist expire upon his or her retirement). Therefore, the Commonwealth argues, Petitioners have no legitimate claim of entitlement to hold judicial office past the retirement date set by the Constitution, thus negating the existence of a property interest that may be subject to protection under due process norms. Insofar as Petitioners argue that they have an independent right to remain in office on the grounds that they have a protected interest in pursuing their chosen profession, the Commonwealth concludes that:
Brief for the Commonwealth, at 24 (quoting Adler, 453 Pa. at 72, 311 A.2d at 640, and citing PA. CONST. art. IV, § 3 (pertaining to the Governor's terms of office)) (some internal quotation marks omitted).
The Republican Caucus of the Pennsylvania House of Representatives, as amicus curiae, adds that only the people are empowered to alter the Constitution — either by constitutional convention or by the process described in Article XI, Section 1 of the Constitution — and that no branch of government should arrogate to itself the power to do so, particularly in this case where the people have, after thoughtful deliberation, twice approved a mandatory retirement age for judges (in 1968 and 2001). Amicus offers, as well, that there are currently pending bills in the General Assembly pertaining to prospective constitutional amendments addressing judicial retirement and post-judicial service, which are being considered in the light of extensive information gathered through hearings at which expert opinions and other material information has been presented. Amicus therefore urges this Court to deny Petitioners' request to judicially eliminate a substantive provision of the Commonwealth's organic law.
As a preliminary matter, we acknowledge a degree of discomfort in presiding over the present matter, as, obviously, members of this Court might benefit from a ruling favorable to Petitioners. Since, however, this potential advantage is common among commissioned Pennsylvania jurists, we proceed to discharge our constitutional duty to resolve the matter under the long-standing rule of necessity. See, e.g., City of Philadelphia v. Fox, 64 Pa. 169, 185 (1870) ("The true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest — where no provision is made for calling another in, or where no one else can take his place — it is his duty to hear and decide, however disagreeable it may be."). That said, and as reflected below, it is our considered judgment that the judicial review must proceed with: a strong presumption that a duly implemented provision of the Pennsylvania Constitution is itself inherently "constitutional"; a large measure of deference afforded to the citizens of the Commonwealth who authorized such prescription by majority vote; and a heavy burden of persuasion imposed upon those seeking to challenge the will of the people as reflected in their state charter.
As the Commonwealth stresses, the Court in Gondelman indicated that nothing in Article I restrains the people of Pennsylvania from amending the Constitution as they see fit, since Article I itself
Although it is possible to construe the expressions in both Stander and Tharp as dicta, since no constitutional violation was found in either case, the concept that certain rights are inherent to mankind, and thus are secured rather than bestowed by the Constitution, has a long pedigree in Pennsylvania that goes back at least to the founding of the Republic. See generally W. Pa. Socialist Workers 1982 Campaign v. Conn. Gen. Life Ins. Co., 512 Pa. 23, 29, 515 A.2d 1331, 1334 (1986) (noting that the drafters of the Pennsylvania Constitution of 1776 adhered to the theories of Locke, Montesquieu, "and other natural law philosophers").
White, 287 Pa. at 267, 134 A. at 412.
Still, as the Gondelman decision emphasizes, one such natural right of the people is the right to alter their government as they see fit, as reflected in Section 2 of the Pennsylvania Declaration.
This difficulty may be more theoretical than practical,
In any event, because Petitioners advance a colorable argument — that the prospect of constitutional amendments in derogation of truly core, indefeasible rights is highly problematic — we will proceed to consider their claim that their asserted right to hold office as a commissioned jurist beyond the age of 70 is encompassed within the inherent rights of mankind. We do so because we consider this latter claim to be far less problematic to resolve.
In advancing their equal protection claim, Petitioners initially rely on Article I,
For the following reasons, we reject the effort to secure heightened review. First and foremost, as related above, any judicial review for constitutional compliance internal to the foundational document must be highly deferential. Here, Petitioners seek to employ heightened scrutiny to regulate the people themselves in the exercise of their "inalienable and indefeasible" right to amend their constitution as they see fit. PA. CONST. art. I, § 2. In such circumstances, we are persuaded by the reasoning in Gregory disposing of a similar challenge to a state constitutional retirement mandate for Missouri judges:
Gregory, 501 U.S. at 471, 111 S.Ct. at 2406 (internal quotation marks, citations, and brackets omitted; emphasis added).
In view of the manifest need — which Petitioners seem reluctant to acknowledge — to balance the constitutionally-grounded right of citizens to equal protection of the laws, against the people's indefeasible right to amend their governing charter as they see fit, we would reject Petitioners' contention that the age-related basis for the classification in issue here implicates a heightened level of scrutiny, even if it were conceded that such elevated review should obtain, under the state Constitution (although it does not under the federal one, see id.), relative to similar age restrictions contained in an act of the General Assembly.
In terms of conventional rational basis review, we decline to reconsider the precedent set by Gondelman, see Gondelman, 520 Pa. at 462-64, 554 A.2d at 901-02 (finding that Article V, Section 16(b) is supported by a rational basis), which is
Indeed, much of Petitioners' argumentation, at least as advanced in their brief,
State ex rel. Keefe v. Eyrich, 22 Ohio St.3d 164, 489 N.E.2d 259, 264 (1986); accord supra note 7.
Thus, although we have no doubt that many individual judges would be capable of serving with distinction beyond their mandatory retirement date — and while the service of the present Petitioners and of many other Pennsylvania jurists reaching age 70 is honored and appreciated — there are overall systemic goals that are rationally related to valid governmental and societal interests.
As for any demographic changes that have taken place since the amendment was adopted in 1968, moreover, they are irrelevant. Accord Gondelman, 520 Pa. at 463, 554 A.2d at 902. Petitioners cite to no authority suggesting that a constitutional amendment that was valid at its inception can become unconstitutional due to societal changes that have occurred with the passage
As noted, in terms of equal protection, Petitioners also reference Article I, Section 26 as one source of Pennsylvania's independent equal-protection guarantee. See Driscoll Complaint at ¶ 68; Tilson Complaint at ¶ 67. See generally Russell Gerney, Equal Protection Under the Pennsylvania Constitution, 42 DUQ. L.REV. 455, 471-77 (2004) (discussing equal protection under Section 26). They suggest that any governmental action requiring them to retire at a certain age violates this nondiscrimination provision. See Brief for Petitioners at 25 n. 9.
In ascertaining the reach of Section 26, we bear in mind that the object of all constitutional interpretation is to give effect to the intent of the provision's framers, and of the people who adopted it. See, e.g., Commonwealth ex rel. Tate v. Bell, 145 Pa. 374, 390, 22 A. 641, 643 (1891). Significantly, neither Section 26 nor its equivalent appeared in the original Declaration of Rights in 1776. The provision first appeared as part of the Constitution of 1968.
We note, as well, that in Fischer v. DPW, 509 Pa. 293, 502 A.2d 114 (1985), this Court determined that Section 26 does not define any new substantive civil rights, but clarifies that an individual may not be harassed or penalized for the exercise of his or her constitutional freedoms. See id. at 310-11, 502 A.2d at 123-24. Petitioners have not provided grounds to suggest that our reasoning relative to Article I, Section 1 should have any less force in the context of the anti-discrimination clause. Thus, as we have concluded that Petitioners' constitutional right to equal protection is not otherwise injured by the retirement mandate, Article I, Section 26, as construed in Fischer, does not provide a separate basis
Petitioners' final argument is that the retirement provision violates their due process rights under the Pennsylvania Constitution. In Adler, this Court developed that the United States Supreme Court, in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), included within the scope of the interests protected by the Fourteenth Amendment's Due Process Clause the right to engage in "the common occupations of life." Adler, 453 Pa. at 72, 311 A.2d at 640; see Meyer, 262 U.S. at 399, 43 S.Ct. at 626. Petitioners' central premise is that, because judging is an occupation, they have a protected property interest in continuing to sit as judges beyond the age of 70. They also aver that, although their right to sit as commissioned judges past that age may not be "fundamental," a heightened level of scrutiny — what Petitioners term a "more restrictive rational basis test than that provided for by the federal constitution," Brief for Petitioners at 39 — should be employed.
We do not agree. In the first place, judges have no property interest conferred by their election or retention in serving as commissioned jurists past the date set by the Constitution for their retirement. Firing leaves little doubt on this point, as it concluded that judges who reach the constitutional retirement age are not elected to "regular" terms — i.e., six years in the case of a justice of the peace, or ten years in the case of judges and Supreme Court Justices — but instead, to terms that expire early due to the mandatory retirement provision. See Firing, 466 Pa. at 566-67, 353 A.2d at 836.
Petitioners distinguish Firing on the basis that it "did not deal with the question of whether the judge had a property interest in serving out the years to which he was elected." Reply Brief for Petitioners at 19 n. 6. In point of fact, however, Firing explicitly discussed the term for which judges are elected according to the precise constitutional text: judges are elected to "regular" 10-year terms, PA. CONST. art. V, § 15(a), or to lesser terms defined according to their "remov[al]" or "retire[ment]." Id. §§ 15(b), 16(b), 18(d); see also Firing, 466 Pa. at 566-67, 353 A.2d at 836. Since the Constitution provides for mandatory retirement at age 70, the Constitution does not itself provide for the election of any judge for any term that extends beyond the age of 70. So understood, Petitioners' observation that Firing did not address "the question of whether the judge had a property interest in serving out the years to which he was elected" is utterly beside the point, because no one here contests Petitioners' honored entitlement to serve out the term of office for which they are elected. Rather, this case is about Petitioners' effort to extend their term beyond the term for which they were elected by nullifying operative terms of the Constitution.
Petitioners' due process argument also rests on the premise that they have a more general right, protected by due process norms reflected in Article I, to pursue
Still, Petitioners appeal to a passage of Nixon in which this Court noted that a more restrictive version of rational basis review applies under the substantive due process rubric, than under equal protection. See Nixon, 576 Pa. at 400-01 & n. 15, 839 A.2d at 287-88 & n. 15 (indicating that the law "must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained"). As with their equal protection argument, however, Petitioners rely exclusively on decisions involving state or local legislation or regulations, or executive action, rather than a constitutional amendment adopted by a vote of the people pursuant to their own inherent right to determine the nature of the authority by which they are governed.
We recognize the dearth of decisional law involving constitutional challenges to constitutional amendments. Nevertheless, the reasoning set forth above concerning the standard for evaluating the viability of a state constitutional amendment under the Equal Protection Clause is equally relevant where the challenger invokes review under due process norms. Under either construct, reviewing courts are the most justified in finding a classification permissible when it is enacted by the people as a constitutional amendment and does not offend the United States Constitution. Such a revision to the organic law of the Commonwealth will only be deemed to violate the constitution that it amends (if at all) where the challenger has shown — clearly, palpably, and plainly — that the amendment is so unreasonable as to be considered "irrational." Gregory, 501 U.S. at 471, 111 S.Ct. at 2406. Our Court in Gondelman determined that Article V, Section 16(b) does not fall into that category, and that determination remains binding.
Even apart from stare decisis, moreover, a mandated retirement age of 70 for Pennsylvania jurists implemented according to the will of the people is rational and amenable to modification according to their dictates. Petitioners, therefore, are not entitled to relief on their due process claim.
In summary, there is colorable merit to Petitioners' position that, theoretically at least, there is some possibility that a constitutional amendment might impinge on inherent, inalienable rights otherwise recognized in the Constitution itself. Nevertheless, we do not believe that the charter's framers regarded an immutable ability to continue in public service as a
Accordingly, we hold that the averments in Petitioners' complaints do not state a claim on which relief may be granted, nor could any factual record be developed that would provide a basis for the remedy requested. We therefore remand these matters to the Commonwealth Court for dismissal of the complaints with prejudice and entry of judgment in favor of the Commonwealth.
Chief Justice CASTILLE and Justices EAKIN, BAER, TODD, McCAFFERY join the opinion.
Justice EAKIN files a concurring opinion in which Justices TODD and McCAFFERY join.
Justice EAKIN, concurring.
I join the majority in its entirety.
Petitioners challenge the age of mandatory withdrawal from the bench, largely contending people, even judges, do not deteriorate intellectually as rapidly they did 50 years ago. See Brief for Petitioners, at 35. Whether true or not, this argument is unavailing — as the majority correctly points out, a constitutional provision does not become void or voidable simply because the premise behind its enactment no longer finds the support it once did. See Majority Op., at 211-12.
I write separately to suggest another, more structural justification of age limitations for judicial service, beyond the presumption of mental decay. I acknowledge such justification is not needed to resolve this challenge, but offer it only to impugn petitioners' premise that mental acuity is the sole rationale for this constitutional provision.
The Pennsylvania Constitution is designed to assure the judiciary a measure of independence not given to the other branches of government in order to insulate it from political pressure. See generally Commonwealth, ex rel. Jiuliante v. County of Erie, 540 Pa. 376, 657 A.2d 1245, 1247 (1995) ("Article V of the Pennsylvania Constitution bestows upon the judiciary certain inherent rights and powers to do what is reasonably necessary for the administration of justice."). For instance, terms of office are not merely two years, or four years, but an expansive ten years. Pa. Const. art. V, § 15(a). Once elected, common pleas and appellate judges do not face contested reelections or partisan opponents — they only face the electorate via a "yes or no" retention vote. Pa. Const. art. V, § 15(b); 42 Pa.C.S. § 3153(b). Furthermore, Article II, § 8 establishes a legislator's compensation may not be increased during a term; in contrast, Article V, § 16(a) assures a jurist's compensation will not be decreased during a term in retaliation for decisions made. Pa. Const. art. II, § 8; Pa. Const. art. V, § 16(a).
Justices TODD and McCAFFERY join this concurring opinion.
Separately, Petitioners argue that we should apply intermediate scrutiny on the basis that the "right to work" is an "undeniably important" right. Brief for Petitioners at 28 (quoting Nixon v. Commonwealth, 576 Pa. 385, 400, 839 A.2d 277, 287 (2003)). This argument lacks precision, as Section 16(b) does not limit Petitioners' right to work as such, but rather, their right to continue as commissioned judges past the age of 70. Additionally, although Petitioners quote from the Nixon case, they overlook that in its context, the quoted passage undermines their position. See Nixon, 576 Pa. at 400, 839 A.2d at 287 ("[W]here laws restrict the other rights protected under Article I, section 1, which are undeniably important, but not fundamental, Pennsylvania courts apply a rational basis test.").
Petitioners' various comments concerning remuneration to senior judges do not materially affect our analysis, below. In any event, these remarks are incomplete, as they do not recognize the interrelationship between a senior judge's pay and his or her retirement benefits. Indeed, while Petitioners otherwise recognize that federal senior judges essentially "provide volunteer services to the courts" (as they are paid the same amount either as senior judges or through retirement benefits), Brief for Petitioners at 12 (citation omitted), they fail to acknowledge that the confluence between Pennsylvania senior judge's pension benefits and pay for ongoing services offers a roughly analogous opportunity for continued public service. See 204 Pa.Code § 211.2(h).
Gondelman, 520 Pa. at 461 n. 7, 554 A.2d at 901 n. 7; Malmed, 621 F.2d at 568 (both quoting Judiciary Subcommittee of the Preparatory Committee for the Pennsylvania Constitutional Convention, Reference Manual No. 5, at 203-04 (1968)).
As related below, in our judgment there are no material facts in dispute in this controversy, and the intra-constitutional constitutionality of Article V, Section 16(b) presents a controlling question of law, over which our review is plenary. In the present procedural context — at the preliminary objection stage per the Commonwealth's demurrer — to the degree any facts are uncertain, we accept Petitioners' allegations concerning such facts and take these in the light most favorable to them.
Hunton v. Commonwealth, 166 Va. 229, 183 S.E. 873, 880 n. 21 (1936) (quoting VA. CONST. art. I, § 1 (1776)).
See Commonwealth v. Aves, 35 Mass. 193, 18 Pick. 193, 1836 WL 2441 *11 (1836) (quoting MASS. CONST. art. I, § 1 (1780)).