Opposition Brief — Hatten v. Rains

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a i SEH F SPANIOL, JR,

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NO. 87-6302 TT A sntt

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

s**t 4

WILLIAM M. HATTEN, Petitioner

V.

JACK M. RAINS, Secretary of State

for the State of Texas, Respondent;

LARRY VESELKA, Chairman, Harris County

Democratic Party, Respondent.

?2c:t232223 2 8

RESPONDENTS' BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

2st 2223 2

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

First Assistant Attorney

General

LOU McCREARY

Executive Assistant

Attorney General

LAURI J. SCHNEIDAU~- JAMES C. TODD, Chief

Asst. Attorney General General Litigation Division

P.O. Box 12548 P.O. Box 12548

Capitol Station Capitol Station

Austin, TX 78711-2548 Austin, TX 78711-2548

Of Counsel Counsel of Record

ATTORNEYS FOR

RESPONDENT JACK M.

RAINS

2 i at We Sh

BEST AVAILABLE COPY

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QUESTION PRESENTED

Whether the mandatory retirement provision of

the Texas Constitution, by barring persons

over 75 years of age from seeking elective

office as a state district judge, is violative of

Petitioner's First Amendment right of access to

the ballot, or of Petitioner's Fourteenth

Amendment right of access to the ballot.

ii

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED Ciben eee ae ee eee i

TABLE OF CONTENT ....ceeeceeer cece eerees ii

TABLE OF AUTHORITIES ....---e-eeeeeeeeece iii

STATEMENT OF CASE ...eeeee eer eeeeecreecs 1

REASONS FOR DENYING THE WRIT .......--- 2-6

COMICT AISI ocicedceenncucantsvscniceseeseres 6

CERTIFICATE OF SERVICE .....---eeeeeees 7-8

ili

TABLE OF AUTHORITIES

CASES PAGE

Anderson v. Celebrezze, 460 U.S. 780

BDC Uu a Ges SSs sees esesserenscssneccss 4-5

Bullock v. Carter, 405 U.S. 134 (1972) .... 4-5

Clements v. Fashing, 457 U.S. 957 (1982) .. 4-5

Diamond v. Cuomo, 70 N.Y.2d 338, 514

N.E.2d 1356, 520 N.Y.S.2d 732 (1987),

appeal dismissed, __ U.S. __,

ee I EG) nee 1-2

Hicks v. Miranda, 422 U.S. 332 (1975) ..... 3

Lubin v. Panish, 415 U.S. 709 (1974) ...... 5

Malmed v. Thornburgh, 621 F.2d 565

(3rd Cir.), cert. denied, 449 U.S. 955

EO ro ee eee eee 3

Maresca v. Cuomo, 64 N.Y.2d 242, 475

N.E.2d 95, 485 N.Y.S.2d 724 (1984),

appeal dismissed, 474 U.S. 802

Ry an ee ee 1-2

Ohio ex rel. Eaton v. Price, 360 U.S. 246

ESOS eee ee ee ee 2

Rubino v. Ghezzi, 512 F.2a 431 (2d Cir.)

cert. denied, 423 U.S. 891 (1975) ....... 3, 8

Trafelet v. Thompson, 594 F.2d 623

(7th Cir.), cert. denied, 444 U.S. 906

CE CUsGChe eee GSS eS Sb cases swbascavenss 3

-l-

STATEMENT OF THE CASE

The facts underlying this controversy are not

in dispute. Respondent Rains agrees with the first

four paragraphs of the Statement of the Case as

contained in the Petition for Writ of Certiorari.

Respondent Rains contests Petitioner's description

of the Court of Appeals decision, which was

contained in the Statement of the Case, and asserts

the following:

The Court of Appeals affirmed the District

Court issuance of summary judgment in favor of

Respondent. The Court of Appeals noted that it

was bound by this Court's decisions in which it

summarily affirmed Diamond v. Cuomo, 70 N.Y.2d

338, 514 N.E.2d 1356 (1987), appeal dismissed,

U.S. __, 108 S.Ct. 2008 (1988), and Maresca v.

Cuomo, 64 N.Y.2d:° 242, 475 N.E.2d 95 (1984),

appeai dismissed, 474 U.S. 802 (1985). Those

cases were virtually identical to the case at bar.

i)

REASONS FOR DENYING THE WRIT

ns A State Constitutional provision

restricting eligibility for election as a_ state

district judge is valid under U.S.

Constitutional considerations.

The Fifth Circuit correctly affirmed the

dismissal of Petitioner's action on the ground that

mandatory retirement at age 75 for state judges did

not violate equal protection as a_ restriction on

ballot access and a burden on the fundamental First

Amendment right of association. Hatten v. Rains,

859 F.2d 687 (5th Cir. 1988).

In upholding Article V, §8l-a of the Texas

Constitution, the Fifth Circuit observed that the

U.S. Supreme Court had spoken twice to the

instant issue "in cases with virtually identical

facts": Diamond v. Cuomo, 70 N.Y.2d 338 (1987),

appeal dismissed, __ U.S. __, 108 S.Ct. 2008

(1988) and Maresca v. Cuomo, 64 N.Y.2d 242

(1984), appeal dismissed, 474 U.S. 802 (1985). In

Diamond, the Supreme Court examined New York

laws requiring the retirement of elected but not

appointed judges at the age of 70. The Maresca

case was a previous challenge to the law when it

affected both elected and appointed judges. The

New York Court of Appeals upheld the law in both

cases, and the U.S. Supreme Court dismissed both

of the appeals for lack of substantial federal

questions. In light of the summary dismissals on

the merits of these New York cases, the Fifth

Circuit rejected Petitioner's argument that the ballot

access. restriction in this case impermissibly

infringed the First Amendment right of access to

the ballct.

Contrary to Petitioner's assertions, the Fifth

Circuit did not consider’ itself barred _ from

considering the claim because of this Court's

summary affirmances of Diamond and Maresca for

-3-

lack of a "substantial federal question." The Co

of Appeals, rather, correctly noted that it ¥

bound by those decisions. "Votes to aff

summarily, and to dismiss for want of a substan

federal question, it hardly needs comment, |

votes on the merits." Hicks v. Miranda, 422 U

332, 349 (1975), quoting Ohio ex rel. Eaton

Price, 360 U.S. 246 (1959).

In evaluating the present case, the Fi

Circuit properly applied rational basis review

Art. V., §l-a and evaluated the _ proffe

rationales for the legislative enactment. The Fi

Circuit thereby concluded that mandatory retirem

at age 75 does not violate the equal protect

clause in its application of access to the bal

The Diamond and Maresca cases used the ident

constitutional analysis, in finding no denial

plaintiffs' rights to equal protection of the lk

after a determination of the rationality of }

York's system for choosing and retiring judges.

The Fifth Circuit's decision that the Te

Constitution did not violate Petitioner's F.

Amendment right of access was also in cl

agreement with every circuit court deciding suc.

question. Three circuits reviewing the question

whether statutory or state constitutional provisi

requiring judges to retire at a certain age vio

the First and Fourteenth Amendments have

upheld the age restrictions and have held that

greater scrutiny than the traditional rational bi

need be applied. Malmed v. Thornburgh, 621 F

565, 570 (3rd Cir. 1980) (Fourteenth Amendn

Equal Protection and Due _ Process challenge

mandatory retirement at 70 for state judge

Trafelet v. Thompson, 594 F.2d 623, 630-631 (

Cir. 1979) (Fourteenth Amendment Equal Protec

and Due Process challenge to mandatory retiren

at 70 of elected state judges); Rubino v. Ghe

512 F.2d 431, 433 (2nd Cir.) cert. denied,

U.S. 891, 96 S.Ct. 187 (1975) (First

Fourteenth Amendments’ challenge to mandatory

retirement at 70 for elected state judges).

Petitioner, however, contends that the Court's

treatment of ballot access cases supports his

assertion that strict scrutiny should be applied to

his equal protection claim. Anderson Vv.

Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75

L.Ed.2d 547 (1983) (strict scrutiny applies to

statute providing me access to the ballot for

independent candidates). However, in Anderson,

strict scrutiny was applied because the restriction

had an impact on aé_e specific class of voters.

Petitioner has not demonstrated, nor could he, the

Texas Constitutional provision serves to

disenfranchise any identifiable class of Texas

voters. In assessing the applicable standard of

review, this Court has held: "Of course, not

every limitation or incidental burden on the exercise

of voting rights is subject to a stringent standard

of review ... in approaching candidate restrictions,

it is essential to examine in a realistic light the

extent and the nature of their impact on voters.’

Buliock v. Carter, 405 U.S. 134, 143 (1972). Ir

Clements v. Fashing, the Court provided guidance

in analyzing this problem:

Far from recognizing candidacy as a

"fundamental right,” we have held that

the existence of barriers to a candidate's

access to the ballot "does not of itself

compel close’ scrutiny.” Bullock v.

Carter, 405 U.S. 134, 43. "In

approaching candidate restrictions, it is

essential to examine in a realistic light

the extent and nature of their impact on

voters." Id. ...Our ballot access cases

do focus on the degree to which the

challenged restrictions operate as a

mechanism to exclude certain classes of

candidates from the _ electoral process.

-5-

The inquiry is whether the challenged

restrictions unfairly or unnecessarily

burden the “availability of political

opportunity." Lubin v. Panish, 415 U.S.

709, 716 (1979)

Clements, 457 U.S. 957, 963-66.

Not all ballot access restrictions have requil

"heightened" equal protection scrutiny. Id.

far, the Court has departed from the rational ba

review in only two lines of ballot access cas

restrictions using classifications based on wea

and restrictions involving classification schemes t

impose burdens on new or small political parties

independent candidates. Id.

Under the test balancing the character of

asserted injury to voters' right with the intere

advanced by the state, it is necessary to rev

the challenged classification based on age &

identify the injury it causes to Petition

Petitioner has no fundamental right to run

elective office. Bullock, 405 U.S. at 142-143. |!

is there some fundamental right to vote for

elderly. Rubino v. Ghezzi, 512 F.2d at 433. °

injury, if any, can only be to the voters’ right

vote for Petitioner. The First Amendment does

reach this far. A voter is not guaranteed the ri

to vote for a specific individual under the Fi

Amendment. The First Amendment protects

right of association in support of certain polit

views and access to the ballot only to the ext

that a citizen may vote for a candidate profess

those views. Anderson, 460 U.S. at 793. ‘

"availability of political opportunity" is theref

not lacking here. The Texas Constitution does

obstruct the voters’ freedom to support and cho

their party's candidate.

Inasmuch as age is net a suspect classificati

and there is no appreciable impact on an identifie

class of voters, the proper level of inquiry to

-§-

applied in cases’ involving mandatory judicial

retirement restrictions is whether the state had a

rational basis for the restriction. Although age

requirements for an office will inevitably exclude

some number of qualified candidates, this does not

mean such restrictions are unreasonable. Indeed,

the United States Constitution contains numerous

age requirements. These requirements, as well as

those of the Texas Constitution, are not intended to

deprive of representation that portion of the

population not meeting their requirements; they are

intended to enhance the average of the abilities of

the officeholders in question. See Hatten v. Rains,

854 F.2d at 696 (concurring opinion of Judge

Garwood. }

CONCLUSION

For these reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

First Assistant Attorney

General

-qT-

JAMES C. TODD, Chief

/General Litigation

‘ Division

State Bar No. 20094700

P. O. Box 12548

Capitol Station

Austin, Texas 78711-2548

(512) 463-2120

ew {lA uml

rite areola

Assist Attorney

General

General Litigation

Division

State Bar No. 20094700

P. O. Box 12548

Capitol Station

Austin, Texas 78711-2548

(512) 463-2120

ATTORNEYS FOR

RESPONDENT JACK M.

RAINS

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy

LOU McCREARY

Executive Assistant Mail,

Attorney General

9110 Richmond

Houston, TX

of the foregoing instrument has been sent via U.S.

certified, return receipt requested on this the

18th day of May, 1989, to:

Ms. Karen A. Lerner

Attorney at Law

David F. Webb

WEBB & HENDERSON

2200 Post Oak Blvd., Suite 420

Houston, TX 77056-4706

Fy C +)

Ce

oa mn) \ ws - Lad Z _

JAMES C. TODD

Assistant Attorney General