# Opposition Brief — Katz v. Pennsylvania

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1698%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 849

## Text

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

(717) 783=.0e

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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

«it-

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

=

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
) 3 There 1 n rea n for the urt
t ¢ i ¢
( ntratl t hat petitione!
cay Pet it Lf nl 1 fe veal
= 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

«4 eo | Vee
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ERNEST D. PREATE, JR

Attor!

JOHN ¢
Chief
Chief,

SUSAN

Senior

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}e

>. KNORR, III
Deputy Attorney

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Litigation Sect
J. FORNEY
Deputy Attorney

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Iberry Square
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1698%3A2. Public record. Not legal advice.