Gardner v. Peoples

Dissenting Opinion by

Judge Doyle:

I respectfully dissent. The narrow issue before this Court is whether the County’s resolution mandating retirement at age seventy for all County employees encroaches upon the exclusive authority of Judge Peoples as President Judge to hire, supervise, and discharge his court crier and two part-time court attendants.

The majority, citing Eshelman v. Commissioners of the County of Berks, 62 Pa. Commonwealth Ct. 310, 436 A.2d 710 (1981) affirmed per curiam, Eshelman v. American Federation of State, County and Municipal Employees, District Council 88, 502 Pa. 430, 466 A.2d 1029 (1983), correctly begins its analysis with a review of the constitutional separation of powers doctrine. In Eshelman this Court held that an arbitrator’s award pertaining to court appointed employees which award included “provisions seeking to govern the discharge, demotion, suspension, and discipline of employees; employee rest periods; employee leaves of absence; employee seniority; and employee classification” unconstitutionally impinged upon the independence of the judiciary. Id. at 313, 436 A.2d at 712. Unconstitutional infirmity, however, is not equatable with unfettered and unabridged control over all aspects of employment. Unless the challenged resolution impairs the judiciary’s power to hire, discharge or supervise, it must be allowed implementation with respect to court appointed personnel. No argument is advanced that the resolution here in question impairs supervisory authority. Thus we need not consider that issue. With respect to hiring, Judge Peoples asserts that the resolution, if enforced against the judiciary, precludes judges from hiring persons over seventy years of age.¹ There has been no allegation that any judge has actually sought to hire an employee age seventy or older. But if mandatory retirement is permissible, the practical effect would of course be to limit hiring as well.

The question thus presented is whether mandatory retirement constitutes a discharge or an unreasonable circumscription on hiring. My research has disclosed no case directly on point. There is, however, case law establishing, in the context of civil service employment, that mandatory retirement is not a discharge and hence that a civil servant has no right to a hearing upon being mandatorily retired. Soltis Appeal, 390 Pa. 416, 135 A.2d 744 (1957). In Soltis the Supreme Court noted, “a known and marked difference exists between the words ‘dismissal’ and ‘retirement’.” Id. at 420, 135 A.2d at 746. Admittedly, Soltis is not controlling here. Yet it is instructive in its recognition that discharge or dismissal is usually a premature termination based upon fault and hence mandates a judgment as to the quality of an employee’s work performance. The Soltis court wrote, “[t]his is not a dismissal, based upon misconduct, incompetence or political affiliation, but retirement based upon age limitation.” Id. at 418, 135 A.2d at 745. Although this comment was made specifically in the context of assessing whether a retired employee should be granted a hearing, I do not believe that its recognition that dismissal is usually fault based need be limited only to the issue of whether a hearing is required. Rather, I believe it expresses the general connotation which accompanies involuntary dismissal or discharge in the employment context.

With this in mind it is clear that when the reason for cessation of an employer/employee relationship requires an individual assessment or judgment of a court employee’s performance or suitability, that assessment must be made by the judiciary so as to protect the independence of that branch of government. But mandatory retirement is an across the board policy which does not require individualized judgment for its implementation. First, built into the mandatory retirement system is a date which is predictable at the outset, and second, absent from the system is any need for assessment of an employees performance. Thus, I do not believe that the County when it passed its resolution usurped from the judiciary the power to make individualized subjective judgments on the employment of court personnel. And in my view it is this usurpation of individual subjective judgment which the separation of powers doctrine seeks to preclude. The majority would hold that when the County mandate removes an employee “whatever the policy reason may be,” the judicial branch has necessarily lost the service of the employee just as surely as if the County had arbitrarily reached out to dismiss the individual from the judicial domain. I maintain that it is just such an examination of County policy that is essential to determine on which side of the constitutional divide the authority will flow. Not all personnel or fiscal policy restriction is arbitrary. Each case must be examined in its own context and setting to determine whether or not the inherent authority of the judiciary is being diminished or encroached upon so as to impair those things that are reasonably necessary for the administration of justice. By placing limits on the number of employees and their salary ranges a county essentially removes certain personnel from the courts employment pool just as surely as if the employees were mandatorily retired. See Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949). I cannot agree, therefore, with the conclusion of the majority that the termination of a judicial employee by external authority, without any regard for the mechanism of removal, be it a fiscal program or a personnel policy of some kind, is warranted. It is important to keep in mind that the inherent power of the judiciary to hire, supervise, and fire exists so that the courts can perform all activities which are reasonably necessary for the administration of justice. Eshelman. While it is certainly true that older employees because of their years of experience may facilitate the carrying on of court business, I do not believe that without these employees the courts would actually be unable “to perform properly the duties delegated to [them] by the Constitution.” Eshelman, 62 Pa. Commonwealth Ct. at 314, 436 A.2d at 712. Believing that the resolution is constitutional as it applies to the retirement of court personnel, I would grant judgment for the County.

1 Judges themselves are subject to mandatory retirement at age 70. See Pa. Const. Art. V, §16(b).