Pending judge vacancy will create quandry in Greene

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WAYNESBURG – This time next year, voters will be signing nominating petitions for candidates for Greene County judge. President Judge William Nalitz, who will reach the mandatory regirement age of 70 in October, is retiring at the end of the year.


On Jan. 1, 2015, Greene County Judge Farley Toothman, who declined to comment on his colleague’s pending retirement, will become the new president judge.


This move will leave Toothman’s current position vacant for what will amount to slightly more than one year. His replacement, who will be elected in November 2015, will not be sworn into office until Jan. 4, 2016. This person is then required to attend the Administrative Office of Pennsylvania Courts’ new judge school for about two weeks to become familiar with the rules and procedures for Common Pleas Court judges.


“Judge school is presented to all newly elected judges after they are sworn in,” said Jim Koval, director of communications for the AOPC. “Being a lawyer doesn’t necessarily prepare you to be a judge.”


As president judge, Toothman will be responsible for supervising judicial business, setting administrative rules and regulations, making judicial assignments and designating available court chambers and other physical facilities to court personnel.


It will also be up to Toothman to request support from AOPC in handling the roughly 1,000 cases that traditionally come through Greene County in a year. Of those cases, between 450 and 600 involve criminal charges.


“In the past, the president judge and I have discussed whether we needed to petition the Supreme Court for help,” said Sheila Rode, court administrator for Greene County. “When Judge (H. Terry) Grimes was brought in as a senior judge, we were directed by the AOPC to do it on a monthly basis. We can request a senior judge to be assigned for a specific case or time period.”


Sixteen years ago, the state Legislature created the second judgeship in the county based on an overloaded system, but an appointment by Gov. Tom Corbett to fill the vacancy is unlikely. According to the AOPC, such appointments give an unfair advantage to the appointee when running for election as it is highly unlikely an incumbent judge would be unseated.


Toothman, however, was appointed in 2009 by then-Gov. Ed Rendell following Grimes’ retirement. He ran for a full term in the 2011 primary as a sitting judge and captured both party nominations. The argument put forth for an appointment in this case was a time issue. Had there been no appointment, there would have been a three-year period where Nalitz would have served by himself.


Toothman’s current 10-year term expires in January 2022. He will not be required to run a re-election campaign, but rather put his name up for a simple “yes” or “no” retention question in 2021.


“The legislature has underfunded our budget requests over a number of years. The courts looked to trim expenses and court costs where they could. In addition, a moratorium on replacing judges was put in motion, instead filling the role with seniors (senior judges) to save money,” said Art Heinz, communications coordinator for the state court system. “Many of them (retired judges) do serve as a senior judge on a part-time, as-needed basis.”


The argument supporting the retirement age of 70 is based on the potential for diminished capacity as a judge ages. However, there is nothing in place during a judge’s term to determine if they are fully cognizant prior to reaching the magic number. And, it is interesting to note, U.S. Supreme Court justices serve for life. Justice Oliver Wendell Holmes Jr. was 90 when he retired from the court.


For a retired judge in the state to be named a senior judge, they have to show competency to continue serving, and their services must be needed in their particular county. By meeting those requirements, they may apply to be certified as a senior judge with the approval of the state Supreme Court.


Whether to increase the retirement age to 75 is a matter the courts addressed and dismissed, placing it before the voters to decide. Nalitz said it is too late for the fight to raise the retirement age to make a difference to his situation.


“It can’t possibly affect me. Probably nobody (judges) born before 1947 would be affected if it were to change,” Nalitz said. He noted, the state legislature must pass a bill to amend the provision regarding retirement age for judges in the state constitution in two consecutive legislative sessions. Each legislative session runs for two years. After that happens, a public referendum on amending the constitution must be held.


Nalitz, who became president judge on Jan. 5, 2009, would not say whether he will seek a senior judgeship.


As the term for a Court of Common Pleas judge in Pennsylvania is 10 years, there are only a handful of Greene County lawyers who are young enough to throw their hat in the ring for the soon-to-be-vacant judgeship.


Judicial candidates are not required to have tried any cases or even actually practiced law at all, let alone for any minimum number of years. They need only be a U.S. citizen, member of the bar of the Supreme Court, a resident of Greene County for at least one year, and at least 21 years of age.


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