Amicus Curiae Brief — Katz v. Pennsylvania

— }

i | |

Supreme Court, U |

“2 as oe

UG 11 16

—a

——— colle

vue

=

hin

Supreme Court of the United States

October Term, 1989

y™

4g

LEON KATZ, ROBERT A. WRIGHT, JOHN F. RAU

HAUSER, JR., WILLIAM E. PFADT, On Their Own Behalf

and On Behalf Of All Others Similarly Situated,

Petitioners

COMMONWEALTH OF PENNSYLVANIA,

Respondent

— a oe

BRIEF OF AMICUS CURIAE

THE PENNSYLVANIA TRIAL LAWYERS’ ASSOCIATION

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

a Lp

4

RoBpert W. MuNLEY

(Counsel of Record)

MattTrHew A. CARTWRIGHT

Mun ey, Mattise & Ke ry, P.(

142 Adams Avenue

Scranton, PA 18503

(717) 346-7401

Attorneys for Amicus Curia

Pennsylvania Trial Lawyer

Association

QUESTIONS PRESENTED

1. Do article V, Section 16(b) of the Pennsylvania

Constitution and its implementing statute, 42 Pa. Cons.

Stat. Ann. Section 3351 (Purdon 1981), requiring that

judicial officers of Pennsylvania be retired at the age of

seventy, violate the equal protection clause of the four-

teenth amendment to the United States Constitution?

2. Do the aforementioned provisions violate the due

process clause of the fourteenth amendment by subject-

ing judges to one of four irrebuttable presumptions,

thereby unconstitutionally depriving judges of a property

right?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED |... <s<s.00000s0nae eee

TABLE OF CITATIONS AND AUTHORITIES.......

CONSTITUTIONAL PROVISIONS AND STATUTES

AT ISSUB . 06.6 cic censcanan neds eee a ere ee eee

REASONS FOR GRANTING THE WRIT ...........

I.

IT.

Ill.

MANDATORY RETIREMENT FOR JUDGES AT

AGE SEVENTY VIOLATES DUE PROCESS OF

7 rrr er eee a

A. PENNSYLVANIA JUDGES HAVE A LEGITI-

MATE PROPERTY INTEREST IN THEIR

EMPLOYMEMNE 0.5 ssst5055nNan ee eee

B. THE MANDATORY RETIREMENT PROVI-

SION ON ITS FACE VIOLATES FEDERAL

DUE PRICES <s05sacvcceneeeeeereenees

THE CASE OF MALMED V. THORNBURGH

WAS WRONGLY DECIDED IN THE THIRD

CIRCUIT AND SHOULD NOT BE FOLLOWED

FIR i sos 0cass0w5 0a 8 cin ene eens

IMPORTANT POLICY CONCERNS MANDATE

THAT PENNSYLVANIA JUDGES MUST NOT

BE FORCED INTO RETIREMENT.............

CAR LARS civ 6. vx cea eee SO eee ee

TABLE OF CITATIONS AND AUTHORITIES

Page

Brown v. Trench, 787 F.2d 167, 170 (3d Cir. 1986)...... 2

Commonwealth ex rel. Specter v. Moak, 452 Pa. 482,

ey ES a Le) 2

Keyishian v. Board of Regents, 385 U.S. 589, 605-06

LESS a 8 0 i ge AO gaa a 2

Malmed v. Thornburgh, 478 F. Supp. 998 (E.D. Pa.

1979), rev'd, 621 F.2d 565 (3d Cir.), cert. denied,

a ee er 5, 8

Malmed v. Thornburgh, 621 F.2d 565 (3d Cir. 1980),

rev'g 478 F. Supp. 998 (E.D. Pa. 1979), cert.

eM ee Bec. PID AIDGU) ow os ec cc ees ‘, 5,6, 7

Pennsylvania Coal Mining Assoc. v. Insurance

Department, Commonwealth of Pennsylvania, 471

Pa. 437, 445 & n.11, 370 A.2d 685, 690 & n.11

te re ree 2

Pickering v. Board of Education, 391 U.S. 563, 568

ees na wne bX ks KA 5s anh oe sabe awens' 2

Soja v. Pennsylvania State Police, 500 Pa. 188, 193,

Se SE 6) 4 ni 2,3

Vlandis v. Kline, 412 U.S. 441 (1973).................. 5

CONSTITUTIONAL PROVISIONS AND STATUTES

AT ISSUE

This action involves the equal protection and due pro-

cess clauses of the fourteenth amendment to the United

States Constitution, U.S. Const. amend. XIV, § 1:

No State shall... deprive any person of life, liberty

or property, without due process of law; nor deny

to any person within its jurisdiction the equal pro-

tection of the laws.

Article V, Section 16(b) of the Pennsylvania Constitution

provides as follows:

Justices, judges and justices of the peace shall be

retired upon attaining the age of seventy years.

Former and retired justices, judges and justices of

the peace shail receive such compensation as shall

be provided by law. No compensation shall be paid

to any justice, judge or justice of the peace who is

suspended or removed from office under section

eighteen of this article or under Article VI.

42 Pa. Cons. Stat. Ann. § 3351 provides as follows:

Judges and district justices shall be retired upon

reaching the age of 70 years.

a

A

REASONS FOR GRANTING THE WRIT

I. MANDATORY RETIREMENT FOR JUDGES AT

AGE SEVENTY VIOLATES DUE PROCESS OF

LAW

A. PENNSYLVANIA JUDGES HAVE A LEGITI-

MATE PROPERTY INTEREST IN THEIR

EMPLOYMENT

The question of whether a particular employment

constitutes a “property” interest is uniquely the function

of state law. Pennsylvania Coal Mining Assoc. v Insurance

Department, Commonwealth of Pennsylvania, 471 Pa. 437,

445 & n.1i1, 370 A.2d 685, 690 & n.ll (1977). Accord, Brown

v. Trench, 787 F.2d 167, 170 (3d Cir. 1986).

Here, each member of the Pennsylvania judiciary

plainly has an “enforceable property right in his contin-

ued employment” on the bench. Soja v. Pennsylvania State

Police, 500 Pa. 188, 193, 455 A.2d 613, 615 (1982)(plurality

opinion of Nix, J.).!

Accordingly, the mandate of the due process clause

of the fourteenth amendment of the United States Consti-

tution applies in full force to the case at bar, and the only

legal question is whether the plaintiffs’ clear due process

rights are compromised by the mandatory retirement pro-

vision at issue.

1 Whether a person continues in his or her empsoyment

with the Commonwealth is not simply a matter of govern-

mental largesse. On the contrary, Pennsylvania employees,

including judges, have a valid property interest in their

employment with the Commonwealth. As this Court has

stated,

it is now beyond cavil that public employees may

not be denied constitutional rights on the theory that

public employment is a privilege, not a right. “ ‘the

theory that public employment which may be denied

altogether may be subject to any conditions, regard-

less of how unreasonable, has been uniformly

rejected.’ ”

Commonwealth ex rel. Specter v. Moak, 452 Pa. 482, 487, 307 A.2d

884, 887 (1973)(quoting from Pickering v. Board of Education, 391

U.S. 563, 568 (1968) and Keyishian v. Board of Regents, 385 U.S.

589, 605-06 (1967)).

B. THE MANDATORY RETIREMENT PROVI-

SION ON ITS FACE VIOLATES FEDERAL

DUE PROCESS

According to Chief Justice Nix of the Supreme Court

of Pennsylvania, in his opinion in Soja v. Pennsylvania

State Police, supra, 500 Pa. 188, 455 A.2d 613 (1982),

[t]he prerequisites of due process have been fre-

quently articulated:

[The] essential elements [of due pro-

cess] are ‘notice and opportunity to be

heard and to defend in an orderly pro-

ceeding adapted to the nature of the

case before a tribunal having jurisdic-

tion of the cause.’

Moreover, “[i]Jn almost every setting where

important decisions turn on questions of fact,

due process requires an opportunity to confront

and cross-examine adverse witnesses.”

Id. at 194, 455 A.2d at 615 (citations omitted).

The part of the Pennsylvania Constitution now under

scrutiny provides as follows:

16. Compensation and retirement of justices,

. P . > J

judges and justices of the peace

(b) Justices, judges and justices of the peace

shall be retired upon attaining the age of sev-

enty years.

Pa. Const. art. V. § 16(b).

Having seen that the requirements of due process do

apply to the taking of Pennsylvania judges’ jobs, it cannot

be ignored that the process provided for in this subsec-

tion is not merely not “due”; it is nil. Justices, judges and

justices of the peace are stripped of their robes at age

seventy without any regard to procedural questions or

the substantive merits of each case. Instead of being able,

at a hearing, to confront and cross-examine witnesses on

their basis for believing the several reasons forwarded for

their forced retirement,? Pennsylvania jurists are forced to

submit to the irrebuttable presumption that those reasons

are true and apply to them.

Incredibly, the Commonwealth repeats, as a justifica-

tion for this provision, the assumption that it avoids the

“unpleasantness” of deciding which judges ought to keep

their jobs and which ought to lose them. To this the

undersigned respectfully submits that there are many

unpleasant tasks essential to the safeguarding of individ-

ual rights. Is it more unpleasant to provide members of

the judiciary with a chance for case-by-case fitness eval-

uation than, for example, to exclude evidence against

perpetrators of crime because of procedural

irregularities?

Il. THE CASE OF MALMED v. THORNBURGH

WAS WRONGLY DECIDED IN THE THIRD

CIRCUIT AND SHOULD NOT BE FOLLOWED

HERE

The case of Malmed v. Thornburgh, 621 F.2d 565 (3d

Cir. 1980), rev’g 478 F. Supp. 998 (E.D. Pa. 1979), cert.

denied, 449 U.S. 955 (1980), plainly does not control the

2 These reasons are summarized at page 9 of the Petition

for Writ of Certiorari.

present case. Nevertheless, that case did decide the fed-

eral constitutionality of the provision now at issue, and it

is instructive to note how the Third Circuit panel reached

its result.

In that case, the Third Circuit panel reversed the

decision of United States District Judge J. William Ditter

on rather a questionable basis. Judge Ditter had held,

after making extensive findings of fact, that the manda-

tory retirement provision in Article V, Section 16(b) vio-

lated federal due process because it used an irrebuttable

presumption shown not to be valid. Malmed v. Thorn-

burgh, 478 F. Supp. 998, 1009-11 (E.D. Pa. 1979). judge

Ditter reasoned that the main flaw of the mandatory

retirement scheme was that it presumed irrebuttably that

aged judges were universally senile, or otherwise incapa-

ble of serving on the bench. Because this is patently not

true, he reasoned, the presumption is invalid and thus

violates federal due process in the same way that any

other invalid irrebuttable presumption has been held to

violate due process. E.g., Vlandis v. Kline, 412 U.S. 441

(1973)(striking down a Connecticut statutory irrebuttable

presumption that all out-of-state applicants to Connecti-

cut state colleges remained nonresidents for as long as

they were students, for purposes of determining tuition).

In the opinion of the Third Circuit panel, per Judge

Aldisert, the foregoing reasoning is “unassailable.” 621

F.2d at 577. Nevertheless, the panel reversed, on the

ground that Pennsylvania’s irrebuttable presumption was

four-fold, instead of depending only on the one premise

that all old judges are unfit. In fact, stated Judge Aldisert,

the reasons for the mandatory retirement were: (1) to

increase manpower; (2) to eliminate unpleasantness; (3)

to prevent harm by a few senile judges; and (4) to keep

up with current trends. Id. at 568.

Unfortunately, the Third Circuit remanded the case

with instructions to dismiss, so Judge Ditter did not get a

chance to decide whether these four alternative irrebutt-

able presumptions were valid or not.

Accordingly, it is left to this Court to decide whether

the four presumptions stated above are so uniformly true

for all justices and judges in the Commonwealth over the

age of seventy that it does not violate due process of law

to make those presumptions irrebuttable. The Pennsylva-

nia Trial Lawyers’ Association respectfully submits that

not one of these presumptions is uniformly true, and that,

therefore, following Judge Ditter’s “unassailable” logic,

the mandatory retirement provision does violate federal

due process.

First, it cannot be universally true that mandatory

retirement “increases judicial manpower.” This premise

assumes without foundation that every new judge will be

more productive than every retiring judge. It also obvi-

ously rests very heavily on the statement that judges will

choose to keep working on a retired-judge basis: in other

words, it makes sense to force judges to retire because

they will keep working anyway. Again, this cannot be

uniformly true, and irrebuttably presuming it to be true

for each individual violates due process.

The truth of the second premise is belied by the

statement of the first: if certain judges, but not others, are

capable of continuing to serve in senior status, this neces-

sarily means that someone must decide —- and is now

deciding — which judges are senile and which are not.

Next, the bogeyman of the one bad judge spoiling the

whole judicial process is completely without foundation,

other than the bald assertion of that idea by Bernard E.

Segal in 1968. Malmed, supra, 621 F.2d at 572 n.7. On the

contrary, the whole reason for having appellate courts is

to do the job of ferreting out judicial incompetence.

Finally, there is the question of whether it is currently

fashionable to force people to retire. This is not a legiti-

mate state objective that justifies taking a responsible

citizen’s job away without affording him an opportunity

to argue about it.

For these reasons, this Court should not follow the

opinion of the Third Circuit on this subject.

Ill. IMPORTANT POLICY CONCERNS MAN-

DATE THAT PENNSY{iVANIA JUDGES

MUST NOT BE FORCED INTO

RETIREMENT

As the Petitioners have correctly noted, Petition for

Writ of Certiorari at page 21 n.7, this amicus is fundamen-

tally opposed to the notion that Pennsylvania judges

ought to be forced to retire at a certain age. Not only does

it clearly rob the individual judges of their Constitutional

-_ eo —_

rights; it also robs Pennsylvania of their valuable

services.

There is no question that older judges who choose to

keep working are extremely effective and helpful to the

judicial system.

In addition to taking notice of the basic competence

of older judges, this Court must not ignore that there is

genius among the senior members of the judiciary. To

name only a few examples, the following jurists contin-

ued to work well past their seventieth birthdays: John

Marshall (80 years old); Oliver Wendell Holmes (91);

Louis D. Brandeis (83); Felix Frankfurter (80); and Earl

3 According to Eastern District Judge Ditter,

The experience of Philadelphia County is illus-

trative. At the present time, Philadelphia has 80

active judges and eight senior judges in the Court of

Common Pleas. N.T. 88. The senior judges maintain

substantially the same level of productivity as active

judges. N.T. 97. One senior judge serves as supervis-

ing judge of the arbitration program in addition to

performing all his regular judicial duties on a full

time basis. N.T. 93. Other senior judges work in each

of the court’s divisions and render services that

would otherwise have to be performed by active

judges.

[S]ince the inception of the senior judge system

the request of every former and retired judge for

assignment to senior judge'duties has been granted.

Malmed v. Thornburgh, 478 F. Supp. 998, 1009 (E.D. Pa. 1979),

rev'd, 621 F.2d 565 (3rd Cir.), cert. denied, 449 U.S. 955 (1980).

Warren (78). Indeed, at present, four of the nine members

of the United States Supreme Court are over the age of

seventy.

Given the fact of general judicial competence over

the age of seventy, at least among those justices and

iudges who would not choose to-.retire, and the obvious

point that some very excellent legal minds are involved,

it cannot and does not make sense for states to be able to

presume the contrary. Accordingly, this amicus is

strongly opposed to forcing members of the Pennsylvania

judiciary to retire at age seventy.

—_ *

4

CONCLUSION

For all of the foregoing reasons, amicus curiae the

Pennsylvania Trial Lawyers’ Association respectfully sub-

mits that the judgment of the court below in this appeal

should be reversed.

Respectfully submitted,

Rogert W. MuNLEyY

MattrHew A. CARTWRIGHT

Mun ey, Mattise & KELLy, P.C.

142 Adams Avenue

Scranton, PA 18503

(717) 346-7401

Attorneys for Amicus Curiae

The Pennsylvania Trial

Lawyers’ Association