Breck v. Michigan

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0049P (6th Cir.)

File Name: 00a0049p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



HON. DAVID F. BRECK; HON.



WILLIAM LUCAS; HON.



CLAYTON E. PREISEL; HON.



No. 99-1628

MICHAEL SCHWARTZ; HON.



GEORGE E. MONTGOMERY, >

Plaintiffs-Appellants, 







v.





STATE OF MICHIGAN;

MICHIGAN DEPARTMENT OF 

STATE; MICHIGAN BUREAU OF 

ELECTIONS; CANDICE MILLER, 





Secretary of State, Chief



Elections Officer; MARLENE



M. BRUNS, Clerk for the

County of Lapeer, 

Defendants-Appellees. 

1

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 98-74677—John Feikens, District Judge.

Argued: January 25, 2000

Decided and Filed: February 10, 2000

1

2 Breck, et al. v. State of Michigan, et al. No. 99-1628

Before: NELSON, SUHRHEINRICH, and GILMAN,

Circuit Judges.

_________________

COUNSEL

ARGUED: Michael J. Lebow, LEBOW & TOBIN,

Farmington Hills, Michigan, for Appellants. Katherine C.

Galvin, OFFICE OF THE ATTORNEY GENERAL, PUBLIC

EMPLOYMENT AND ELECTIONS DIVISION, Lansing,

Michigan, for Appellees. ON BRIEF: Michael J. Lebow,

LEBOW & TOBIN, Farmington Hills, Michigan, Mayer B.

Morganroth, MORGANROTH & MORGANROTH,

Southfield, Michigan, for Appellants. Marcelyn A. Stepanski,

S. Randall Field, JOHNSON, ROSATI, LaBARGE,

ASELTYNE & FIELD, Farmington Hills, Michigan, for

Appellees. Paul W. Cousino, Mt. Clemens, Michigan, for

Amicus Curiae.

_________________

OPINION

_________________

SUHRHEINRICH, Circuit Judge. Plaintiffs, five Michigan

state judges, appeal a summary judgment for Defendants,

State of Michigan and various state agents, on Plaintiffs'

federal equal protection challenge to state laws that render

them ineligible for re-election because of their age.

I. BACKGROUND

Plaintiffs-Appellants are several State of Michigan circuit

and probate judges contemplating re-election who will be

seventy years old on the election days for the judicial offices

that they seek. Plaintiffs are Judges David F. Beck, William

Lucas, Clayton E. Preisel, Michael Schwartz, and George E.

Montgomery. Defendants-Appellees are the State of

Michigan, Michigan Department of State, Michigan Bureau

of Elections, Secretary of State Candice S. Miller, and

No. 99-1628 Breck, et al. v. State of Michigan, et al. 3

Marlene M. Bruns, County Clerk for the County of Lapeer.

Individual Defendants are variously involved in maintaining

and implementing state laws that render Plaintiffs ineligible

because of their age to stand for election to judicial office.

The State of Michigan does not require its judges to retire

at a certain age. Rather, the Michigan State Constitution

renders ineligible for election to a judicial office anyone who

is at least seventy years old on the election day for that

judicial office: "Justices and judges of courts of record must

be persons who are licensed to practice law in this state. No

person shall be elected or appointed to a judicial office after

reaching the age of 70 years." Mich. Const. art. 6, § 19. One

implementing statute denies eligibility to the office of circuit

court judge to anyone older than sixty-nine on the day of

election:

A person shall not be eligible to the office of judge of the

circuit court unless the person is a qualified elector of the

judicial circuit in which election is sought, as provided in

section 11 of article 6 of the state constitution of 1963, is

licensed to practice law in this state, and, at the time of

election, is less than 70 years of age.

Mich. Comp. Laws § 168.411 ("§ 411"). A similar statute

applies to probate court judges. See Mich. Comp. Laws

§ 168.431 ("§ 431"). The judicial terms for Michigan circuit

and probate judges are six years. See Mich. Comp. Laws

§§ 168.419 (circuit judges), 168.439 (probate judges).

Essentially, Michigan law creates two categories of seventy

to seventy-six year old people based on the relation of their

birthdays to the day of election. A successful judicial

candidate who becomes seventy years old after the election

day could possibly serve until he or she becomes seventy-six

years old. However, a person who is seventy years old on the

election day for a judicial office is simply ineligible for

election to that judicial office. Plaintiffs sued because they

will be seventy years old on election day and, therefore,

ineligible.

4 Breck, et al. v. State of Michigan, et al. No. 99-1628 No. 99-1628 Breck, et al. v. State of Michigan, et al. 9

Plaintiffs requested a declaratory judgment that section 19 we are especially reluctant to question the exercise of

of article 6 of the Michigan Constitution of 1963 and sections congressional judgment.

411 and 431 of the Michigan Compiled Laws are

unconstitutional under the Equal Protection Clause of the Id. at 83-84. See also Zielasko, 873 F.2d at 961-62.

Fourteenth Amendment. The Fourteenth Amendment

provides “nor shall any State deprive any person of life, For analysis of the present case, we assume, but do not

liberty, or property, without due process of law; nor deny to assess or necessarily endorse, the wisdom of the State of

any person within its jurisdiction the equal protection of the Michigan in attempting to promote the competency of its

laws.” U.S. Const. amend. XIV, § 1, cl. 2. Plaintiffs claim judiciary by eliminating candidates who are over sixty-nine

that the constitutional and statutory age restrictions are not years old. We also recognize that the election eligibility laws

rationally related to the goal of preserving judicial are not precisely or evenly tailored to eliminate such judges.

competence by eliminating judges who are over sixty-nine Nevertheless, we find that the election eligibility laws are

years old. rationally related to preserving the competency of the

judiciary.

After the parties filed cross motions for summary judgment,

the district court granted summary judgment to Defendants. Even if the election eligibility laws were insufficiently

The district court reasoned that the challenged state laws did related to preserving the competency of the judiciary, the laws

not violate the Plaintiffs’ rights to equal protection because are rationally related to other state purposes such as

the laws were rationally related to legitimate state objectives promoting judicial efficiency and reducing partisan

of preserving judicial competency and enhancing appointments of judges. Disqualifying judicial candidates

administrative efficiency by reducing the disruption of mid- over sixty-nine years of age promotes judicial efficiency by

term judicial vacancies (assuming the existence of a avoiding the disruption in litigation from reassigning cases

mandatory age retirement alternative) and promoting the because of mid-term judicial vacancies, assuming an alternate

electorate's preferences by reducing the need for partisan mandatory age-retirement scheme. Further, the laws also

gubernatorial appointments. avoid the additional cost of conducting special judicial

elections. Moreover, limiting candidates to those who are

II. DISCUSSION able to serve an entire term, again assuming alternative

mandatory age retirement, furthers the electorate's choice of

Plaintiffs concede that preserving the competency of the its judges by reducing the necessity of filling mid-term

judiciary by eliminating older judges may be a legitimate goal judicial vacancies from mandatory retirements with partisan

of the state. However, they contend that the laws are not gubernatorial appointments. See Mich. Comp. Laws

rationally related to this goal because they eliminate only §§ 168.404, 168.409j, 168.424, 168.444, 168.467m. Because

those people who turn seventy on or before the election but the election eligibility laws are rationally related to these

not those who are sixty-nine or younger on the election day objectives, the laws do not violate Plaintiffs' rights to equal

and could possibly serve until they are seventy-six years old. protection.

Defendants respond that Michigan's age-eligibility election III. CONCLUSION

laws are sufficiently related to preserving judicial competency

because under rational basis review the Equal Protection Accordingly, we AFFIRM the district court's grant of

Clause does not require absolute precision in classifying summary judgment to Defendants.

otherwise similarly situated groups where distinctions are

8 Breck, et al. v. State of Michigan, et al. No. 99-1628 No. 99-1628 Breck, et al. v. State of Michigan, et al. 5

because the classifications made by its laws are imperfect" warranted. Defendants also maintain that the age-eligibility

(quoting Murgia, 427 U.S. at 316, in turn quoting Dandridge election laws are rationally related to other legitimate state

v. Williams, 397 U.S. 471, 485 (1970))). In Murgia, the Court goals, such as promoting administrative efficiency by

applied rational basis scrutiny and upheld the mandatory eliminating the disruption of mid-term vacancies (assuming

retirement of state police officers at age fifty over an equal an alternate mandatory age retirement scheme) and advancing

protection challenge. The Court commented "that the the voters' choice of judicial candidates by reducing the

drawing of lines that create distinctions is peculiarly a opportunity for mid-term gubernatorial appointments.

legislative task and an unavoidable one. Perfection in making

the necessary classifications is neither possible nor This Court reviews de novo a trial court's grant of summary

necessary." Murgia, 427 U.S. at 314 (citing Dandridge, 397 judgment. See Brooks v. American Broadcast Cos., 932 F. 2d

U.S. at 485). In Vance, 440 U.S. at 109, the Court again 495, 500 (6th Cir. 1991). Summary judgment may be granted

applied rational basis scrutiny and upheld mandatory if there is no genuine issue of material fact and defendant is

retirement for federal Foreign Service employees over an entitled to judgment as a matter of law. See Maddox v.

equal protection challenge. The Vance Court acknowledged University of Tennessee, 62 F.3d 843, 854 (6th Cir. 1995).

and accepted some imprecision in the classification: We agree with the Defendants and affirm the decision of the

district court for the following reasons.

Even if the classification involved here is to some extent

both underinclusive and overinclusive, and hence the line Rational basis scrutiny applies to equal protection

drawn by Congress imperfect, it is nevertheless the rule challenges to mandatory age-retirement statutes. See Gregory

that in a case like this "perfection is by no means v. Ashcroft, 501 U.S. 452 (1991). In Gregory, the plaintiffs,

required." The provision "does not offend the state judges, challenged the Missouri Constitution’s

Constitution simply because the classification <is not mandatory retirement provision for judges at age seventy.

made with mathematical nicety . . . .'" After litigation in the Missouri state courts, the United States

Supreme Court applied rational basis scrutiny and found that

Vance, 440 U.S. at 108 (citations omitted). the Missouri Constitution did not violate the Equal Protection

Clause. The Supreme Court applied rational basis scrutiny

Further, the Supreme Court has recognized and accepted because age is not a suspect classification under the Equal

that some classifications have unnecessary and harsh results. Protection Clause and because candidacy for judicial office

In Matthews v. Diaz, 426 U.S. 67 (1976), aliens were denied does not implicate any fundamental right. See id. at 470.

federal aid because they did not satisfy a residency

requirement. The Court upheld the eligibility requirements: The Sixth Circuit addressed a case very similar to the

present case and also applied the rational basis test. See

[I]t remains true that some line is essential, that any line Zielasko v. State of Ohio, 873 F.2d 957 (6th Cir. 1989). In

must produce some harsh and apparently arbitrary Zielasko, the Ohio Constitution prohibited people over sixty-

consequences . . . . The task of classifying persons . . . nine years old from standing for election to judicial office.

inevitably requires that some persons who have an almost This Court applied rational basis scrutiny:

equally strong claim to favored treatment be placed on

different sides of that line; the differences between the [T]he threshold question in deciding an equal protection

eligible and ineligible are differences in degree rather claim is to decide the appropriate level of scrutiny to

than differences in the character of their respective apply to the restriction or classification at issue. In most

claims. When this kind of policy choice must be made, cases distinctions and classifications "need only be drawn

6 Breck, et al. v. State of Michigan, et al. No. 99-1628 No. 99-1628 Breck, et al. v. State of Michigan, et al. 7

in such a manner as to bear some rational relationship to irrelevant." See Vance v. Bradley, 440 U.S. 93, 109 (1979)

a legitimate state end." Departure from this rational (citing Califano v. Jobst, 434 U.S. 47, 56-58 (1977)).

relationship test is permitted "only when the challenged

statute places burdens upon 'suspect classes' of persons or In Gregory, the Supreme Court recognized any one of the

on a constitutional right that is deemed to be following objectives as a sufficient rational basis to sustain a

'fundamental.'" In such an instance courts are to apply mandatory retirement provision for judges against an equal

strict scrutiny, that is, "'scrutiny' more vigorous than that protection challenge: (1) avoiding tedious and difficult

which the traditional principles would require." The individualized review of physical and mental qualifications;

district court correctly found that the rational relationship (2) increasing opportunity for judicial office and orderly

test was applicable to this case because age is not a attrition through retirement; and (3) promoting predictability

"suspect" classification, and because, contrary to and ease in administration of pension plans. See Gregory,

Zielasko and Bowman's assertions, running for office is 501 U.S. at 471-72.

not a "fundamental right."

In applying rational basis scrutiny in Zielasko, this Court

Id. at 959 (citations omitted). The present case involves both recognized mandatory retirement as rationally related to

candidacy for judicial office and a candidate’s age. several legitimate state interests such as creating openings for

Accordingly, we will apply rational basis scrutiny to younger judges, easing court dockets by creating a pool of

Plaintiffs’ equal protection claim. part-time judges, and reducing age-related incompetence of

some older judges. See Zielasko, 873 F.2d at 961 (citing State

Rational basis scrutiny, a deferential review, only requires ex rel. Keefe v. Eyrich, 489 N.E.2d 259 (Ohio 1986)).

a state of facts that provide a conceivable basis for the

classification. See Allied Stores v. Bowers, 358 U.S. 522, 530 In the present case, Defendants simply must show that the

(1959). To withstand constitutional review, the classification age limitation on election eligibility is rationally related to a

simply must be rationally related to the goal or purpose of the legitimate public purpose. Plaintiffs argue that the age-

classification. Minnesota v. Clover Leaf Creamery Co., 449 eligibility election laws violate the Equal Protection Clause

U.S. 456, 464 (1981). Rational basis review does not assess because they are not rationally related to the state’s interest in

the wisdom of the challenged regulation. See Massachusetts preserving judicial competency by eliminating candidates

Bd. of Retirement v. Murgia, 427 U.S. 307, 316 (1976) who are over sixty-nine years old. Clearly, the laws only

(noting that the Court did not assess the wisdom of requiring prohibit the election of people who are already seventy but do

police officers to retire at age fifty-five); see also Stiles v. not prohibit the election of candidates who are sixty-nine or

Blunt, 912 F.2d 260, 267 (8th Cir. 1990) (applying rational younger and might serve until they are seventy to seventy-six

basis review to Missouri’s minimum age requirement for state years old. Nevertheless, Plaintiffs' arguments are not

legislative office while withholding the court’s own persuasive for several reasons.

evaluation of the law's wisdom). Further, whether the

identified legitimate state interests were actually considered The age-eligibility election laws are sufficiently rationally

in establishing the prohibition is irrelevant. See Flemming v. related to preserving the competency of the Michigan

Nestor, 363 U.S. 603, 612 (1960); Zielasko, 873 F.2d at 961. judiciary. Rational basis scrutiny of an equal protection

Likewise, whether a legislature "was unwise in not choosing challenge tolerates some imprecision in classifying otherwise

a means more precisely related to its primary purpose is similarly situated people where a state has determined that

some distinction is warranted. See Gregory, 501 U.S. at 473

(a state "does not violate the Equal Protection Clause merely