# Hargrove v. Board of Trustees

> Court of Appeals of Maryland · September 2, 1987 · 310 Md. 406

URL: https://www.frixlaw.com/law-library/cases/9702302

## Case

- **Full name:** John R. HARGROVE v. BOARD OF TRUSTEES OF the MARYLAND RETIREMENT SYSTEM
- **Court:** Court of Appeals of Maryland
- **Decided:** September 2, 1987
- **Citations:** 310 Md. 406; 529 A.2d 1372; 1987 Md. LEXIS 277
- **Precedential status:** Published
- **Opinion:** Dissent by McAULIFFE
- **Judges:** Murphy, Smith, Eldridge, Cole, Rodowsky, Couch, McAuliffe
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9702302

## How later opinions describe it (automated extraction)

- explaining that the constitutionality of a particular classification often depends on the level of review under which it is analyzed because a statute subject to strict scrutiny is “nearly always struck down under an analysis that [has historically been] ‘strict in theory and …
- explaining that legislation subject to rational basis review almost always has received "minimal scrutiny in theory and virtually none in fact"
- explaining the evolution of the traditional two-tiered approach into the current three-tiered constitutional framework
- noting that “not all variances among different pension systems need be justified by the State”

## Opinion text

McAULIFFE, Judge,
dissenting.
I agree that this case is not directly analogous to Waldron 1 , but I believe that this statutory deprivation of *428 earned compensation cannot survive a proper equal protection analysis. My disagreement with the majority is twofold. First, I do not accept the restrictive approach requiring that all cases be divided into one of three classifications for determination of the level of scrutiny to be applied without any consideration of the range of difference that may exist in the fact situations of cases within a single classification. Second, I believe the majority has adopted too narrow a focus with respect to the important rights affected by this legislation, restricting its consideration to the impact upon judges and failing to consider as well the impact upon the federal judicial system and the rights of the people as a whole.
On the first point, there was a time not so long ago when the equal protection analysis employed only two categories of cases: 1) those involving “fundamental” personal rights or involving distinctions based upon clearly “suspect” criteria and, 2) all other cases. Cases falling into the first category were said to be entitled to the demanding review of “strict scrutiny” while those failing to make that category were relegated to a “rational basis” test. Waldron, supra, 289 Md. at 705-07, 426 A.2d 929 . As Judge J. Dudley Digges pointed out for the court in Waldron , the practical result of this rigid two-tier analysis was that the determination of the classification in large measure dictated the outcome of the cases. Legislation in cases in the first category'was nearly always struck down under an analysis that is “strict in theory and fatal in fact,” and legislation in other cases almost invariably survived, receiving “minimal scrutiny in theory and virtually none in fact.” Waldron, supra, 289 Md. at 707-08 , 426 A.2d 929 , quoting Gunther, The Supreme Court, 1971 Term-Forward: In Search Of Evolving Doctrine On A Changing Court: A Model For A Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972).
Predictably, cases then arose that justified scrutiny exceeding that traditionally applied under the rational basis test but that did not meet the demanding criteria for admission to the strict scrutiny set. These cases, involving *429 “sensitive although not necessarily suspect criteria of classification,” or involving “important” personal interests or “significant interference with liberty or a denial of a benefit vital to the individual,” 2 have usually received the critical analysis they deserve, albeit by virtue of diverse judicial rationale utilized to justify the increased scrutiny. This Court has recognized those middle-ground cases as a discrete category for purposes of equal protection analysis, affording “heightened scrutiny” to cases falling within that category, but apparently offering no differentiated approach to cases within a single category. Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 640-42 , 458 A.2d 758 (1983); Waldron, supra.
Another approach has been to apply the rational basis test more critically when the facts of a case place it within the upper level of the spectrum of that category. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985) (White, J., plurality opinion). This approach was promptly labeled a “second order” rational basis review. City of Cleburne, supra, 105 S.Ct. at 3263 (Marshall J., concurring in part and dissenting in part). Yet another approach is espoused by Justice Stevens in his concurring opinion in City of Cleburne, in which Chief Justice Burger joined.
[O]ur cases have not delineated three—or even one or two—[clearly defined standards of equal protection review]. Rather, our cases reflect a continuum of judgmental responses to differing classifications which have been explained in opinions by terms ranging from “strict scrutiny” at one extreme to “rational basis” at the other. I have never been persuaded that these so called “standards” adequately explain the decisional process. Cases involving classifications based on alienage, illegal residency, illegitimacy, gender, age, or—as in this case—mental retardation, do not fit well into sharply defined classifica *430 tions. City of Cleburne, supra, 105 S.Ct. at 3260-61 (footnotes omitted).
To the extent the dispute is one of substance and not semantics, I am of the opinion that the “continuum” or “full-spectrum” approach most effectively implements the constitutional mandate of equal protection. Utilizing this commendably flexible approach, or even using the “second •order” rational basis approach, I find the restrictive provision of the statute at issue constitutionally infirm. Difficulty is encountered only when the rigid discipline of the three-tier analysis, complete with the traditional “no-win” rational basis test, is mechanically applied. Even if forced to that analysis, however, I conclude that appropriate consideration of all the rights impacted by the statute would justify heightened scrutiny, and so yield the same ultimate result.
I turn to my second point—recognition of the several important rights impacted by the statute. Initially, there is the impact upon judges. An equal protection analysis must address the impact upon the class, but because Judge Hargrove’s situation is representative, I shall refer to it.
At the time Judge Hargrove was appointed to the federal trial bench he had accrued more than 16 years of creditable service with the Maryland Judiciary, serving at both levels of the trial courts, and had attained the age of 60 years. He therefore was eligible to retire and receive compensation in the amount of $38,664 per year from the Judicial Pension Plan 3 .
This Court has previously held that judicial pensions represent “a form of deferred compensation and not a substitute earnings plan.” Waldron, supra, 289 Md. at 723 , 426 A.2d 929 . In Clark v. Tawes, 187 Md. 195, 200 , 49 A.2d 463 (1946), our predecessors said that judicial pensions are
*431 part of the inducement which leads competent persons to give up the greater emoluments of private employment for lesser compensation by the State. This is usually stated to be peculiarly applicable to judges who are generally able to make more in private practice than they can on the bench, and who thereby give up all chance of further increase in their estates for a fixed salary which ends when they reach a certain age.
In recommending and in fixing judicial salaries the Judicial Compensation Commission and the Legislature of this State routinely consider the earnings of attorneys and compare those earnings with the compensation package of judges, the major components of which are the judge’s salary and the State’s contribution to the judicial pension fund. No effort is made to establish a judicial compensation package equalling the earnings of comparable private practitioners, for it is always assumed that public service demands a financial sacrifice. But even when a substantial discount is made to accommodate the public service factor, the reduced figure is not paid solely by salary. Instead, it is paid by a combination of salary and the State’s contribution to the judges’ pension plan.
It is clear that a judge’s pension is not a windfall. It is deferred compensation, and is treated as such by the Legislature in fixing judicial salaries. It is fully earned, partially funded by the judges, and one of the reasons highly qualified attorneys are willing to accept judicial positions. The judge who makes the initial financial sacrifice ordinarily involved in the acceptance of a judicial position, who earns his or her compensation package through the required years of service, and who makes the required contributions to the fund, has a significant interest and reasonable expectation of receiving and enjoying, at the time of retirement from state judicial service, that part of the compensation which has been deferred. Curtailment of the right to receive that which has been earned, and for which sacrifices have earlier been made, should be permitted only where *432 demonstrably required to accommodate legitimate State interests.
Even more important than the private rights of the individual judges are the rights of the people of the State and of the United States to maintain without unnecessary restriction the widest possible pool of highly qualified candidates from which the President may select those who will serve on the United States Supreme Court, the federal Courts of Appeals, and the federal trial courts. A state statute that has a significant chilling effect upon those who by experience, training, and demonstrated ability and temperament may be the most desireable candidates for those important offices should receive careful scrutiny. While not perfect, a useful analogy can be drawn to the ballot access cases. 4 In Turner v. Fouche, 396 U.S. 346, 362 , 90 S.Ct. 532, 541 , 24 L.Ed.2d 567 (1970), the Supreme Court identified the “federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications.” In Harper v. Virginia Board of Elections, 383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1966), the Court, applying the stringent standard of close scrutiny, held that the imposition of an annual poll tax not exceeding $1.50 was a denial of equal protection. In Bullock v. Carter, 405 U.S. 134 , 92 S.Ct. 849 , 31 L.Ed.2d 92 (1972), the Court considered a Texas statute that imposed substantial filing fees upon candidates, noting that:
[T]he rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters____ Texas does not place a condition on the exercise of the right to vote, nor does it *433 quantitatively dilute votes that have been cast. Rather, the Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose. 405 U.S. 143 , 92 S.Ct. at 856 (footnotes omitted).
Acknowledging that not all statutory barriers to candidate access to the ballot will require strict scrutiny, the Court went on to assess the impact of the filing-fee requirement on the exercise of the franchise. Finding that impact “real and appreciable” the Court applied strict scrutiny and invalidated the statute.
The instant case is one step removed from a classic voting rights case. The voters do not directly suffer the restriction of the pool of candidates because, as is typical of a representative democracy, the selection of the persons to fill these important positions is made by a person who has in turn been selected by the voters. However, the ultimate impact upon the people and their government is the same— some of the best qualified candidates are significantly impacted by the legislation. Given the differences that exist between this case and ballot access cases to which I have referred, I am reluctant to urge the application of the strict scrutiny standard here. I believe, however, that the impact upon the public, considered in conjunction with the economic impact upon the involved class of judges and the impact upon their right to be considered as candidates for federal judicial office, justifies a heightened scrutiny, whether denominated as such or as a “second order” rational basis scrutiny. Of course, if the “continuum” or “full-spectrum” sliding scale approach is used, one simply determines how high on the scale the impact is properly placed, and whether there has been shown to exist a state purpose sufficient to justify an impact of that magnitude. Under any of these tests, I believe the restrictive provisions of this statute fail to pass constitutional muster.
The discrimination here is readily apparent. Of all State employees and officials, only judges suffer a setoff of *434 pension benefits upon acceptance of a federal position. As the parties stipulated:
By contrast with the Plaintiff, or any other retired judge of the State of Maryland, if the Governor, Lieutenant Governor, Attorney General, or Comptroller, all of whom now are attorneys, were appointed a federal district judge, each would be entitled to collect his full vested pension benefits.
The impact of this restriction has been discussed. There remains for consideration the State purpose served by the statute. The State suggests a threefold purpose: 1) to prevent the appearance of impropriety, 2) to prevent “double-dipping,” and 3) to encourage State judges to remain on the bench rather than accept more lucrative public employment. The majority makes no attempt to exalt the importance of these goals. Perhaps that results from the fact that traditionally there has been no need to evaluate the necessity for, or potential efficacy of, legislation being analyzed under the rational basis test—a test more often than not interpreted to mean any conceivable basis rather than any conceivable rational basis. But it seems to me equally possible that the majority’s treatment of the State’s proffered purposes may accurately reflect the fact that they deserve a low position on the spectrum of importance.
“Double-dipping,” as that term is commonly employed, means receiving a government salary in addition to a pension from the same government. Technically, there is no “double-dipping” when the pension is paid by one sovereign and the salary by another. In a broader context, however, it may be urged that “double-dipping” should include multiple payments from governmental funds, without regard to the identity of the government. The focus should be upon the evil that the State seeks to rectify, and not upon the term used to describe it. Accordingly, the proper inquiry is whether the concurrent receipt by a judge of pension payments from the State and a salary from the federal government is a situation so inimical to the interests of the people *435 of the State that it justifies the impact we have described and the imposition of the restriction upon judges alone.
As previously discussed, the pension payments to a judge are in reality deferred compensation, and I am not persuaded that the Legislature could rationally conclude that it would in any manner be improper for a judge to collect that which he or she had already earned along with that which the judge was then earning. Had the full compensation package of the judge been paid as salary and had the judge devoted a portion of it to the purchase of a private annuity, it could hardly be said that the judge who later accepted federal employment should not also have the benefit of the annuity. The situation here is the same, except that instead of paying the entire compensation to the judge as salary, the State has paid a portion into a fund, which together with the contributions made by the judge is actuarily sufficient to “purchase the annuity” i.e. to fund the pension payments.
In the alternative, if there can be divined some evil inherent in this process that perhaps my abiding personal interest in the subject causes me to overlook, I nevertheless fail to see why it is wrong for judges to receive the pension, but not wrong for governors, attorneys general, comptrollers and senators to do so. Indeed, given the nature of judicial pensions as heretofore discussed, one would think payments to judges would be the least suspect. This brings me to consideration of another purpose advanced by the State—that judges must avoid the appearance of impropriety. Certainly judges do and should occupy a position of particular trust and confidence in our society, and they are properly held to high standards of conduct. It is not enough to hold that receipt of both payments is entirely ethical and proper, for if the public perception is otherwise the public confidence in the judiciary may in some measure be undermined by allowing the payments. Having identified this as a potential problem that properly may have been considered by the Legislature, I hasten to add that my practical assessment is that its gravity is very low, and *436 certainly insufficient on balance to justify the substantial impact of the discriminatory statute.
The final reason advanced, that the Legislature may have enacted the restrictive legislation in order to discourage judges from accepting federal employment, seems to me so patently and impermissibly provincial and so contrary to the best interests of a strong federal government as to be unworthy of further comment. To the extent that it could legitimately be given any weight, that weight is too slight, either singularly or when considered with the purpose of avoiding the appearance of impropriety, to justify the substantial impact of the restrictive provisions of the statute.
I would reverse the judgment of the Circuit Court for Baltimore City and remand the case to that Court for entry of a summary declaratory judgment consistent with the views expressed herein.
. Attorney General v. Waldron, 289 Md. 683 , 426 A.2d 929 (1981).
. L. Tribe, American Constitutional Law § 16-31, p. 1090 (1978).
. The Judicial Pension Plan is funded by contributions from the State and from the active judges. Each judge contributes 6% of his or her salary for the first 16 years of service.
. For a discussion of ballot access cases in several contexts, see Ahrens & Hauserman, Fundamental Election Rights: Association, Voting and Candidacy, 14 Val.U.L.Rev. 465-85 (1980); Note, Better Late Than Never: The John Anderson Cases and the Constitutionality of Filing Deadlines, 11 Hofstra L.Rev. 691-732 (1983); Comment, Municipal Corporations: Extraterritorial Powers Without Voting Rights—Equal Protection Considerations?, 31 U.FlaX.Rev. 631-44 (1979).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9702302. Public record. Not legal advice.