Opposition Brief — Katz v. Pennsylvania

JOSEP

NO. 89-80 Saheb

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1988

LEON -KAIToC. © e..>

Petitioners

COMMONWEALTH OF PENNSYLVANIA,

Respondent

BRIEF IN OPPOSITION

ERNEST D. PREATE, JR.

Attorney General

BY: JOHN G. KNORR, III

Chief Deputy Attorney Genera]

Chief, Litigation Section

Counsel of Record

SUSAN J. FORNEY

Senior Deputy Attorney Genera]

Office of Attorney General

lSth Fl., Strawberry Square

Harrisburg, PA 17120

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QUESTION PRESENTED

Whether the mandatory retire-

ment of judges at age seventy serves any

legitimate state purpose, and therefore

complies with the Equal Protection and

Due Process Clauses of the Fourteenth

Amendment?

TABLE OF CONTENTS

QUESTION . PRESENTED. ....:08s45%05

SABLE OF AUTRORITICG. «5.450 ees

nite

TABLE OF AUTHORITIES

CASES PAGE(S)

Aaronstam v. Cashman, 132 Vt.

Sees. Sa0 Mia 361 (1974)... 2:8. 14

City of Cleburne v. Cleburne

Living Center, Inc. 473 U.S.

ta D> 8 SS a 16

Grinnell v. State, 121 N.H.

Sass S222 A.~2G $23 (1981).....> 14

Hatten v. Rains, 854 F.2d 687

[oem Cir. 1988), cert.

denied No. 88-1455

SE SRS |) Oe ee 14

Malmed v. Thornburgh, 621 F.2d 565

(3d Cir.), cert. denied,

SE a passim

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

475 N.E.2d 95 (1984),

appeal dismissed,

8 oe a Ef: ae] ) 14

Massachusetts Board of Retirement

v. Murgia, 427 U.S. 307

eee a LS on pce kw oko acs passim

Nelson v. Miller, 25 Utah 2d

Bate See Pia 467 ©1971) 2. «0s 14

O'Neil v. Baine, 568 S.W.2d 761

EE as ay ey kb wee eee ke ae 14

-iii-

7 TABLE OF HOR

CASES PAGE(S)

Richardson v. Belcher, 404

cs te eae LPs or ee eee 19

Rubino v. Ghezzi, 512 F.2d 431

(2d Cir.), cert denied,

S23 iG. Bek Cael ors s 6k eae 8k 14

Trafelet v. Thompson, 594 F.2d 623

(7th Cir.), cert. denied,

08: G8. 1906 4 Bote) sok yee es 14

Vance v. Bradley, 440 U.S.

OS £EPe Ee 6 6 ek ee ee es 9,13

25,16

Weinberger v. Salfi, 422 U.S.

(<> ae @ 3 of Sree eg Gere ees ee 9

CONSTITUTIONAL PROVISIONS

U.5. Cenet. Benes BLF vik cele es passim

Pa. CONG: BS. Fe 1G6B 324s en va =

4

Pa. Const. eft. Vi 5 260G) os van 4

ait Vo

PAGE(S)

STATUTES

545-0. 0. 86 622-654.0. 3 es 5,17

42 U.S.C. §§ 1395-1395ccc........ 17

Pa. Cons. Stat. tit. 42, § 702(b)

ee os a ae a ee ee 8

Pa. Cons. Stat. tit. 42, § 3351

PPO ae ee ee l

Pa. Stat. Ann. tit. 43, § 955(a)

(PurGgon Supe. 1969) 6.534 0a 17

Pa. Stat. Ann. tit. 62, §§ 2901-

2908 (Purdon Supp. 1989)...... 17

Pa. Stat. Ann. tit. 71, §§ 581-1

through 581-12 (Purdon Supp.

ROO E Ee se sk eee eee ee bee 17

Pa. Stat. Ann. tit. 72, §§ 4751-1

through 4751-11.3 (Purdon

SURO . PROS Ds 8s es oe shor nae ie ee 17

RULES OF COURT -—

Pe. R. Ape. -28ee. 19s 2t Oi vis os ae 6

STATEMENT OF THE CASE

he The petitioners, Sitting

judges of the Commonwealth of Pennsyl-

vania, attack the constitutionality of

the Commonwealth's mandatory retirement

law. Pennsylvania's Constitution

provides that "[j]Justices, judges’ and

Justices of the peace shall be retired

upon reaching the age of 70 years." Pa.

Comet. art. V, §$ 16(b}; Pa. Cons. Stat.

cit. 42, § 3351 (1988) (same). The

petitioners claim that this provision

deprives them of the equal protection of

the laws and of substantive due process,

in violation of the Fourteenth Amendment

to the Constitution.

2% In 1968, Pennsylvania

adopted a new Judiciary Article to its

Constitution, the result of a special

convention convened to consider amend-

ments to the Pennsylvania Constitution.

Included in that new Judiciary Article

was Article V, § 16(b), the mandatory

retirement provision at issue in this

case.

The Judiciary Article was the

product of extensive deliberations by

the Judiciary Subcommittee of the

Preparatory Committee for the Pennsyl-

vania Constitutional Convention. The

Judiciary Subcommittee summarized the

arguments favoring a mandatory

retirement provision, Stating that a

mandatory retirement policy:

substantially increases

judicial manpower when a plan

for part-time post-retirement

service exists. By contin-

ually bringing in younger

judges while retaining’ the

part-time services of willing

and able retired judges, a

system of mandatory retire-

ment plus post-retirement

service helps solve the

pressing problem of court

congestion and delay. As oo

— mentioned previously,

Pennsylvania already has

provided for voluntary

post-retirement service.

eliminates unpleasantness

of removing aged and disabled

judges on an individual

selective basis. Mandatory

retirement is more impersonal

than individual removal:

everyone is treated alike.

The difficulty and unpleasant-

ness of determining which

judges are senile and which

are not is largely avoided.

prevent[s] harm by few

senile judges [which] more

than offsets loss of judges

who retain full powers past

normal age. Besides, the

services of able retired

judges may be secured by a

Provision for post-retirement

service.

corresponds with Current

trend towards mandatory

retirement in other public

and private employments.

There appears to be no good

reason why judges’ should be

treated differently from

other public officials,

teachers, executives, and

other professional people who

are subject to compulsory

retirement.

Pet. App. 12-13, quoting Judiciary

Subcommittee of the Preparatory

Committee for the Pennsylvania Consti-

tutional Convention, Reference Manual

No. 5 at 203-04 (1968); see Malmed wv,

Thornburgh, 621 F.2d 565, 567-69 (3d

Cir.), Gert. denied, 449 U.S. 955 (1980).

The convention adopted the

mandatory retirement language drafted by

the Judiciary Subcommittee. When

ratified by popular vote on April 23,

1968, that language became Article v,

§ 16 of the Pennsylvania Constitution.

While Article V, § 16(b)

requires retirement of judges at age 70,

Atticie §.:¥, § 16(c) provides Ene *e

former or retired Justice or judge may,

with his consent, be assigned by the

Supreme Court on temporary judicial

services as may be prescribed by rule of

the Supreme Court."

as This case was filed in

Pennsylvania's Commonwealth Court by

Harold Gondelman, a Pittsburgh lawyer, -

and the petitioners intervened as

plaintiffs at various stages in_ the

proceedings. The petitioners claimed

that Pennsylvania's constitutionally-

mandated retirement for judges a) itself

violated the State Constitution; b)

violated the Age Discrimination in

Employment Act, ao. U.8.6. 8§ 621-634

(ADEA) ; and se violated the Equal

Protection and Due Process Clauses of

the Fourteenth Amendment. The Common-

wealth demurred to all the claims, and

the petitioners moved fOr summary

relief, see Pa. R. App. Proc. 1532(b);

the court consolidated the demurrer and

the motion for summary relief for

argument before the court en banc.

lIMr. Gondelman is not a_ petitioner

in this Court. Pet. at 11.

On the state constitutional

issue, the court was equally divided.

Three judges would have held that one

provision of the State Constitution

cannot violate another, and accordingly

would have sustained the Commonwealth's

demurrer. Pet. App. at 27-32. Three

judges disagreed, and would not only

have overruled the demurrer but would

have granted Summary relief to the

petitioners. Pet. App. it 42-4

On the ADEA clalm, the court

unanimously Sustained the demurrer,

holding that, as elected officials,

Judges are expressly exempted from

coverage under the statute. Pet. App.

at 32-37, 42-43

On the federal constitutional

claims the court was again unanimous.

Pet. App. at 37-42. The court recognized

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the objectives sought." Pet. App. at

41. Finding it impossible to decide

this question on the record before it,

the court likewise rejected petitioners'

request for summary relief. Pet. App.

at @2. The Commonwealth Court then

certified the case for immediate appeal

to the Supreme Court of Pennsylvania,

Pet. App. at 48, which allowed the

appeal. Pet. App. at 4; see Pa. Cons.

Stat. tit. 42, § 702(b) (1988).

4. The Pennsylvania Supreme

Court sustained the Commonwealth's

demurrer to both the state and federal

constitutional claims.” The Supreme

Court held that the State Constitution

could not violate itself, Pet. App. at

17-22; and held, essentially following

2The petitioners did not pursue

their claim under the ADEA in the state

Supreme Court, and they do not pursue it

in this Court.

the analysis in Malmed v. Thornburgh,

Supra, that the mandatory retirement

provision did not deprive the

petitioners of either equal protection

or substantive due process, Pet. App. at

5-16.

The Supreme Court began with

the proposition, established by this

Court in Massachusetts Board of

Retirement Vv. Murgla, 427 iy 307

(1976) and Vance v. Bradley, 440 U.S. 93

(1979), that the elderly are not A

"suspect class" and that classifications

based on age need only have some

rational basis to survive constitutional

scrutiny. Pet. App. at /7-ll. Turning

then to the INandatory retirement

provision, the court focused on the

history of the Constitutional] Convention,

specifically the reports of the Judiciary

Subcommittee to the Preparatory Commit-

tee, and found that the provision was

intended to further four separate and

legitimate state purposes: the

reduction of court congestion, the

elimination of the unpleasantness’ of

selectively removing aged and disable@

judges, the prevention of harm by senile

judges, and conformity with the general

trend toward mandatory retirement’ at

seventy in other public’ and_ private

employment. Pet. App. at 12-13 n.7.

The Supreme Court noted that "the

reasons for this provision were clearly

articulated during the [constitutional]

convention and offered to the public in

securing their vote....Those reasons

have not been, nor can they be, chal-

lenged on the ground that they do not

have a -reasonable relationship to a

legitimate state purpose." Pet. App. at

kes

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The Supreme Court rejected the

idea, embraced by the Commonwealth

Court, that the petitioners should be

allowed to present evidence that the

mandatory retirement provision did not

in fact serve the purposes i t was

intended to serve:

Accepting, for the considera-

tion of this contention, that

these positions could be

established, they would not

be relevant to the consti-

tutional analysis....If the

selected method is not the

most effective or efficient

method to achieve the State

objective, the people may

remedy that by amending that

provision.

Pet. App. at 14-15. The Supreme Court

therefore sustained the Commonwealth's

demurrer and ordered the action

Be |

dismissed. Pet. App. at 2z

One Justice dissented on the

state constitutional issue, Pet. App. at

22-23, without discussing the federal

ee

REASONS FOR DENYING THE WRIT

Nothing about this case

requires review by the Court. In

holding that mandatory retirement’ for

judges is constitutional, the Pennsyl-

vania Supreme Court agreed with every

other state supreme court, and every

federal court of appeals, which has

considered the issue. The decision

below is an uneventful application of

principles which the Court long-ago

settled and which there is no reason to

reconsider.

zs The Pennsylvania Supreme

Court correctly applied Massachusetts

Board of Retirement v. Murgia, supra and

Vance v. Bradley, supra to hold that

Pennsylvania's mandatory retirement law

is rationally related to four separate

and legitimate state interests, and that

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it therefore passes muster under both

the Equal Protection and Due _ Process

Clauses. Pet. App. at 7-13. The Third

Circuit, considering identical claims in

Malmed v. Thornburgh, supra, had earlier

done the same. Other courts have

reached the same conclusion. Mandatory

retirement laws for judges are not

uncommon, and the courts have uniformly

held them to be rationally based.

3Hatten v. Rains, 854 F.2d 687

(5th eh oe 1988), cert. denied, No.

88-1455 (June z; 1989); Trafelet v.

Thompson, 594 F.2d 623 (7th Cir.), cert.

denied, 444 U.S. 906 (1979); Rubino v.

Ghezzi, 512 F.2d 431 (2d Cir.), cert.

denied, 423 U.S. 891 (1975); O'Neil v.

Baine, 568 S.W.2d 761 (Mo. 1978);

Grinnell v. State, 121 N.H. ° 823, 435

A.2a 523 (1981); Maresca _v. Cuomo, 64

42, 475 N.E.2d 95 (1984), appeal

lismissed, 474 U.S. 802 (1985);. Nelson

v. Miller, 25 Utah 2d 277, 480 P.2d 467

(1971); Aaronstam_v. Cashman, 132 Vt.

In light of this uniformity,

there is obviously no need for the Court

to review this case in order to resolve

a conflict among the lower courts. Nor

does this case present a novel question

of federal law. The principles’ that

govern constitutional challenges to

age-based classifications were settled

by the Court in Murgia and Vance, and

the application of those principles to

the facts of a particular case is not

the sort of question that justifies

discretionary review by the Court.

Nor is it likely that the court

below erred in applying those principles.

It is unlikely that mandatory judicial

retirement, upheld in so many _ states,

should be rational in those states but

irrational in Pennsylvania; and it is

equally unlikely--but the only alterna-

tive-- that all of the courts that have

a

wrong]

\¢ ital y they! t ‘

petitioner: ire driven tc ask the Court

t "reviev ind correct” Murgia ind

Vance, Pet. at 4, and to hold that age

uspect cla 1fication ubject t

etri ct judicial Crutiny Pet i t

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= S32 nc the Court yucter nth appr 1 J 1 t

holding in Murgia, City oO! Cleburne

Cleburne Living Center, Inc., 4/3 U.os5

432, 441 (1985), and expressly refused

to undermine it: "We are reluctant t

set out on that course [of extending

suspect clas: status to the aged and

other groups], and we decline to d

Nor is there any need to do so

now. In Cleburne, the Court declined to

extend suspect class status to the

mentally retarded, in part because the

Sympathetic legislative response to

their problems belied any need for

special judicial protection from the

majoOritarian political process. ph: ae

943-45. This analysis applies with even

greater force to the elderly, + and

4p partial list of those

legislative responses includes, on the

federal Jevel, the Medicare program, 42

i oe §§ 1395-1395ccc, and the Age

Discrimination in Employment Act, 29

7.8.¢. 8§ 621-634. In Pennsylvania,

they include the creation of a

cabinet-level Department of Aging, Pa.

Stat. Ann. tit. 71, §§ 581-1 through

581-12 (Purdon Supp. 1989); a

prohibition against employment

discrimination based on _ age, 43 Pa.

Stat. Ann. cit. 43, § 955(a)(Purdon

Supp. 1989); property tax rebates for

the elderly, Pa. Stat. Ann. tit. 72,

§§ 4751-1 through 4751-11.3 (Purdon

Supp. 1989); and pharmaceutical

assistance for the elderly, Pa. Stat.

Ann. tit. 62, §§ 2901-2908 (Purdon Supp-

1989). -

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Claim, and perforce to reject it. Pet,

App. at 5; Malmed, 621 F.2d at 573-77

and n.19. "([A] classification that

meets the [equal protection] test...is

perforce consistent with the due process

requirement...." Weinberger v. _ Salfi,

422 +s 749, 770 (1975), quoting

Richardson v. Belcher, 404 U.S. 78, 81

(1971).

4. As to the petitioners’

procedural due process claim, Pet. at

28, it was neither raised in, nor

considered by, either of the courts

below, and the Court should not consider

it now.

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CONCLUSION

he foregoing reas

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ERNEST D. PREATE, JR

Attor!

JOHN ¢

Chief

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SUSAN

Senior

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Deputy Attorney

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J. FORNEY

Deputy Attorney

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