Petition — Raymond E. Trafelet v. James R. Thompson, Governor of Illinois

- Supreme Court, U. & 7

FILED

JUN 25 1979

No. 8-191

A

In the MICHAEL RODAK, JR., C

Supreme Court of the Anited States

Octoner TreRM, 1978

RAYMOND E. TRAFELET, DAVID A. CANEL, ARCHIBALD J. CAREY,

JR., and BENJAMIN NELSON, individually and on behalf of all others

similarly situated; and PETER "FITZPATRICK, ALBERT W. WILLIAMS,

and MELVIN B. LEWIS, individually and on behalf of all others similarly

situated,

Petitioners,

v.

JAMES R. THOMPSON, as Governor of Illinois; STATE BOARD OF

ELECTIONS OF THE STATE OF ILLINOIS; and JOHN W. COUNTRY-

MAN, as Chairman and Member, MICHAEL E. oe as Vice

Chairman and Member, and JOHN J. LANIGAN, PHIL, GILBERT,

RICHARD A. COWEN, CAROLINE R. CHAMBERLAIN, JOSHUA

JOHNSON, and THERESA PETRONE, as Members of the State Board

of Elections of the State of Illinois, and MICHAEL J. BAKALIS, Comp-

troller of the State of Lllinois; ALAN J. DIXON, as Secretary of State

of Illinois; ROY O. GULLEY, as Director of the Administrative Office of

the Illinois Courts; and JOHN J. McDONNELL, LEHMAN KRAUSE,

JAMES EDWARD DULL, and W. R. TODD, ALLEN HARTMAN, BRIAN

B. DUFF, DAVID J. SHIELDS, JAMES A. ZAFIRATOS, ANTHONY

J. BOSCO, MELVIN N. LANDAU, MICHAEL P. TOOMIN, MARVIN H.

RUTTENBERG, and JAMES J. HEYDA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

C/O GOTTLIEB and SCHWARTZ

120 South La Salle Street

Chicago, Illinois 60603

312/726-2122

Attorneys for Petitioners

Of Counsel:

GOTTLIEB and SCHWARTZ

DAVID GOLDBERGER

ROGER BALDWIN FOUNDATION

AMERICAN CIVIL LIBERTIES UNION

5 South Wabash Avenue

Chicago, Illinois 60603

312/236-5564

The Scheffer Press, Inc.—(312) 263-6850

TABLE OF CONTENTS

PAGE

RRR ER oe 1

I ial dita cenaretr cansensesecsssapenstnesensarerennenpannss 2

Questions Presented For Review ...........ccscccsescssseeseeeees 2

Statates and Constitutional Provisions Involved ........ 2

I as sibai ssscnsensinonccccscseobesees 3

Reasons for Granting the Writ "7

I. Seetion I of the Illinois Compulsory Retirement

of Judges Act is invalid under equal protection

and the First Amendment ................cccccccccssccssssssssssees 29

II. The Illinois Compulsory Retirement of Judges

Act violates the equal protection clause of the

Fourteenth Amendment because of the classifica-

tions contained in Section 2 of the Act .................. 19

i cncnsuvomnens 25

APPENDIX

Decisions of the Court of Appeals ..........cccsscesseessees App. 1

Taste Or AUTHORITIES

CaSEs

Blassman v. Markworth, 359 F. Supp. 1 (N.D. IIL,

EEE LE EES TAA OE TR 12

Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L.

LL TE 8,18

City of New Orleans v. Dukes, 427 U.S. 297, 302.

SEG LENCE EN Talc a 22

Communist Party v. Whitcomb, 414 U.S. 441, 94 S.

Ct. 656, 38 L. Ed. 2d 635 (1974) w..cccsccscscssccsscscsessessses 8

ii

PAGE

Henderson v. Fort Worth School District, 526 F. 2d

Be Ie Ss: BIIIIE: -csihicscceseinsnslshunnnintsniniiuniaiiigieaiiaidinsiannsapnatien 15

Illinois State Board of Elections v. Socialist Workers

Party, 00.000 I cand , 99 S. Ct. 983, 59 L. Ed. 2d

SD. depecnievevintsinctilleteistiiiiiatenndaiecaseaititldlitiibiiadee 8, 10, 11, 19

Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) ........ 24

Massachusetts Board of Retirement v. Murgia, 427

U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976)... 7

Oregon v. Mitchell, 400 U.S. 112 at 294-5, n. 14 (1970)... 13

Storer v. Brown, 415 U.S. 724, 94 S. Ct. 1274, 39 L.

UII Tilson isin Zinksacnainah cnddnnieitglnpidemesaagmasnenbignmisbes 8

Vance v. Bradley, ........ 8 ree , 99 S. Ct. 939, 58

L. Ed. 2d 2 8, 21

Watson v. Maryland, 218 U.S. 173, 176-77 (1910) ...... 22

Williams v. Lee Optical Co., 348 U.S. 483, 489 (1955) .. 24

Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed.

a caalepiontial 8, 11

Statutes anp CoNsTITUTIONAL Provisions

Illinois Judicial Retirement Act

Ch. 37, Ill. Rev. Stat. (1977) §§23.71, 23.72 ............ 2

Laws 1965, p. 1792, $1 and §2 eff. July 20, 1965,

as amended by Public Act 78-805, §1 eff. Sep-

I SI: TIIUID <i sahi cts eceentinensisssnntelthiadatiannniainiindtintinn 2

Illinois Constitution of 1970, Article VI ..............cccue 2

United States Constitution

RAE CGY * ER ee a OE ER 3,14

Fourteenth Amendment ..............:ccsccesesessesssesessenees 3, 4, 14

In THE

SUPREME COURT OF THE UNITED STATES

Octoser TerM, 1978

Petitioners,

JAMES R. THOMPSON, as Governor of Illinois; STATE BOARD OF

ELECTIONS OF THE STATE OF ILLINOIS; and ee W. COUNTRY-

ILBERT,

COWEN, CAROLINE R. CHAMBERLAIN, JOSHUA

JOHNSON, and THERESA PETRONE, as Members of the State Board

MICHAEL J. BAKALIS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIROUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Seventh Circuit is reported at 594 F. 2d 623. It is

reproduced in the Appendix hereto (“App”).

a

JURISDICTION

The judgment of the United States Court of Appeals

for the Seventh Circuit was entered on March 16, 1979.

Petition for Rehearing En Banc was denied April 24, 1979.

This Court has jurisdiction under 28 U.S.C. §$1254(1).

QUESTIONS PRESENTED

1. Whether the Illinois Compulsory Retirement of

Judges Act, Ch. 37, Ill.Rev.Stats. (1977), §§ 23.71, 23.72,

which provides for mandatory retirement of elected Illi-

nois judges at age 70 and thus denies, by reason of age,

judicial candidate access to the ballot and elector op-

portunity to vote for such candidates, violates the rights

of such disqualified judges and voters under the equal pro-

tection clause of the Fourteenth Amendment and the First

Amendment?

2. Whether the Illinois Compulsory Retirement of

Judges Act violates the equal protection clause of the

Fourteenth Amendment because of the classification con-

tained in § 2 of the Act which suspends the Act with

respect to judges in office on July 20, 1965, the effective

date of the Act, and certain judges in office on June

30, 19731

STATUTES AND CONSTITUTIONAL

PROVISIONS. ALLOWED

The Illinois Act in issue és appended QE under

which disqualification of Llinois judges by reason of age

is mandated. Ch. 37, Ill. Rev. Stats. (1977) §§ 23.71, 23.72;

Laws 1965, p. 1792, $1, and §2 eff. July 20, 1965, as amend-

ed by Public Act 78-805, $1, effective September 12, 1973.

The Illinois Constitution of 1970, Article VI .

@@y establishes normal qualifications for judicial office

—

and sets forth the requirements and procedures for elec-

tion and retention election. It further permits the General —

Assembly to provide by law for retirement of judges

at a prescribed age. It further provides machinery for

removal of a judge found physically or mentally unfit to

perform his duties.

Finally, the Fourteenth Amendment to the United States

Constitution is relied on eau as is the

First Amendment.

STATEMENT OF THE CASE

Jurisdiction was asserted in the District Court based

upon 28 U.S.C. $§1331, 1343(3), 1343(4), 42 U.S.C. §1983,

the First and Fourteenth Amendments to the United

State Constitution (and the pendent jurisdiction of the

Court for claims not pertinent here). Declaratory relief

was sought pursuant to 28 U.S.C. §§2201 and 2202.

1. Nature of the Case and Proceedings Below.

Two classes of Plaintiffs-Petitioners (hereinafter “Peti-

tioners”’) filed the Complaint herein, seeking declaratory

and injunctive relief. The Judge Plaintiffs-Petitioners

(hereinafter “Judge Petitioners”)* brought suit on be .alf

of all judges of the Supreme, Appellate and Ci cuit

Courts of Illinois, who are or will be subject to mandutory

retirement under Illinois law at age 70 before the end

of their certified terms of office, and who will be d prived

of the right to run for re-election or retention election

to judicial office because they have attained the age of 70.

The Voter Plaintiffs-Petitioners (hereinafter “Voter Peti-

* Judges Trafelet, Canel, Carey and Nelson.

oie

tioners”)* brought suit on behalf of all registered voters

of the State of Illinois who are or will be denied the

opportunity to vote for the judicial candidates of their

choice because they are or will be subject to mandatory

retirement at age 70. The District Court certified both

classes.

Count I of the Second Amended Complaint is the only

Count pertinent here. It asserts that the Illinois Compul-

sory Retirement of Judges Act (hereinafter ‘‘the Act’’)

violates the Equal Protection Clause of the United

States Constitution, Fourteenth Amendment, in pertinent

part because it disqualifies elected judges from holding

office or running for reelection or retention after they

attain age 70 and bars voters from voting for those

judges; and further because the Act discriminates in its

application to elected judges depending on their date of

original election. Petitioners asserted that strict serutiny

was the required test under the Fourteenth Amendment

because the Act operated to bar ballot access and voter

choice.*

The District Court took evidence and entered Findings

of Fact and Conclusions of Law on which judgment for

defendants was entered. The Seventh Circuit Court of

Appeals affirmed.

Judge Petitioners all held office as elected judges when

the suit began. Because the Act mandated their retire-

ment in December of 1978, and the disqualification of all

of them to run for retention (as Judge Canel sought

* Petitioners Fitzpatrick, Williams and Lewis.

* Alternatively, it was asserted that if the rational

relation test was applicable, the Act did not meet that

test. That question and be payer claims alleged under

Illinois law are not asserted as issues in this Petition,

5

to do that month) or reelection then or ever, they sought

but were denied injunctive relief in the District Court

and injunctive relief pending appeal. Likewise, their mo-

tion for expedited appeal was denied below. Accordingly,

they all became disqualified in December of 1978, and

lost office before the appeal was decided. Petitioners

sought a declaration that the Act violates ‘he United States

Constitution and a declaration that the Judge Plaintiffs

are not disqualified from holding judicial office and seeking

reelection to such office, Thus, should the judgment below

be reversed, the declaratory relief requested would result

in those ousters being declared void, and their rights to

run for reelection restored.

2, Statement of Facts Pertinent to the Petition.

In 1965, the Illinois General Assembly approved manda-

tory retirement for judges at age 70." Section 1 of the

Act provides for judicial retirement immediately following

the attainment of age 70.° Section 2 suspends the effect

of mandatory retirement for judges in office in 1965 until

eighteen years of judicial service, January 1, 1976 or age

70, whichever occurs last.

* Judge Canel was denied the right to run for retention

election. The other judges, whose terms extended beyond

that dato, lost their offices.

*The 1970 Illinois Constitution authorizes the General

Assembly to provide for the retirement of judges: “The

General Assembly may provide by law for the retirement

of Judges and Associate Judges at a pr ribed bowen

Art. i 15a. “i ies toed

* Retirement occurs on the first Monday in December

following the general election after the judge’s 70th birth-

day. Section T of the Act. a

Pe “Owe

In 1973 the General Assembly amended the Act (§2) to

suspend its effect on “any Judge in office on June 30th,

1973” who could not fulfill minimum pension requirements

upon becoming 70. According to the evidence, the purpose

of the Amendment was to insure that loyal party perform-

ers would obtain minimum pensions.

No other [Illinois State official is disqualified from

completing the term of an elected office or seeking re-

election because of a maximum age limit. No person is

disqualified from seeking any other Illinois elected office

because of attaining a maximum age.

Prior to 1976 approximately four judges were manda-

torily retired. In 1976, twenty-nine judges were manda-

torily retired pursuant to Section 1.

Since 1965, approximately forty-two judges have been

excluded from the effect of the mandatory retirement

provision by Section 2 of the Act. After the November,

1978 elections, fifteen of these judges remain on the bench,

some of them until 1984, at which time they will be in

their late seventies or early eighties.’

The named Voter Petitioners are three registered

voters of Cook County, Illinois, who have voted for the

named Judge Petitioners, and who desire to vote for

Judge Petitioners in the future and for the election and

retention in future elections of other judges in the class

of Judge Petitioners.

"A sixteenth judge, eligible to serve until 1980 and age

77, did not win retention, and was retired by the voters.

inn ene

In Illinois eligible’ persons are elected to the offices

of Supreme, Appellate and Circuit Court judge. Initially,

every candidate must seek election through the political

process. An elected judge may seek to succeed himself

by filing with the Secretary of State a Declaration of

Candidacy before the election preceding the expiration

of his term of office. A judge seeking “retention” election

in this manner must receive the affirmative vote of three-

fifths of the voters. While this method of reelection is

preferred by judges, nothing in Illinois law bars a judge

from seeking reelection through the normal political

process, except for the Act in issue here which may dis-

qualify a judge.

The Act in issue here clearly operates to disqualify

any person, whether or not a sitting judge, from running

for office initially, or running for reelection or retention,

if that person has reached age 70, unless protected by

Section 2 of the Act. Through such disqualification, the

Act thereby stops voters from organizing to support and

from voting for judicial candidates of their choice who

have attained that age.

REASONS FOR GRANTING THE WRIT

Introduction

With respect to laws mandating age retirement of non-

elected public employees, this Court has made clear that

equal protection scrutiny is governed by the “rational

relationship” test. Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520

* Eligibility a that the individual be a United

States citizen, a licensed attorney-at-law of Illinois, and

a resident of the judicial unit which selects the individual.

Art. VI, §11, Illinois Constitution of 1970

(1976); and Vanc Bradley, ........ en , 99 S. Ct.

939, 58 L. Ed. 2d (1979). But a number of decisions

of this Court and the Circuit Courts, the latest being

IUinois State Board of Elections v. Socialist Workers

en 1p Qaeewrers , 99 S. Ct. 983, 59 L. Ed. 2d 230

(1979), have held that any legislative classification that

limits voter choice and candidate ballot access is sub-

jected to a strict scrutiny standard. In this case, an IIli-

nois statute is confronted which mandates disqualification

for reelection and requires retirement of elected judges

who attain age 70. Thus, the first question posed is

whether the Murgia-Vance standard applies because age

is the classification, or whether the Socialist Workers

standard governs because the law bars access to the ballot

and voter rights.

The Seventh Circuit decision is in conflict with Socialist

Workers and other decisions of this Court and other

Courts of Appeal wherein classifications that restricted

ballot access and voter choice were reversed under a

standard of strict scrutiny. Williams v. Rhodes, 393 U.S.

23, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968); Bullock v. Carter,

45 U.S. 134, 92 S.Ct. 849, 31 L. Ed. 2d 92 (1972); Com-

mumst Party v. Whitcomb, 414 U.S. 441, 94 8. Ct. 656,

38 L. Ed. 2d 635 (1974); and Storer v. Brown, 415 U.S.

724, 94 8. Ct. 1274, 39 L. Ed. 714 (1974). Further, in a

democracy, any law that bars large numbers of qualified

persons from public elected office because of maximum

age restrictions poses an important public and constitu-

tional issue that should be resolved by this Court.

A further question is posed by that aspect of the

Illinois law which places certain judges in a more favor-

able posture than others, depending on their date of

election (before 1965, the original law, or before 1973 in

the case of the 1973 amendment). Thus, many judges in

Illinois remain eligible to remain in office and run for

reelection until they reach their late 70’s or early 80’s

in age.

The Seventh Circuit decision below is the first in which

any court has applied principles which upheld so-called

“grandfather clauses” of classification in cases of economic

regulation, so as to permit classification betweer persons

eligible to hold and run for public elected office. Again,

such holding conflicts with the decisions imposing strict

scrutiny to classification barring ballot access and voter

rights, and conflicts with prior authority controlling

“grandfather clauses” in economic cases. Finally, the

issue of whether some people can be “grandfathered”

into public office over others similarly situated who are

disqualified, is one of great public and constitutional

importance in a democracy.

For those reasons, more fully discussed below, the

Writ should be granted.

L

SECTION 1 OF THE ILLINOIS COMPULSORY RE.

TIREMENT OF JU"GES ACT IS INVALID UNDER

an ng PROTECTION AND THE FIRST AMEND.

The Court below misapprehended the standards for

review consistently asserted by Petitioners below. As

shown by the Complaint they consistently asserted that

(1) because the Act manifestly denies judges over 70

access to the ballot for retention or reelection, and

denies voters rights to vote for candidates of their

choice if those candidates are over 70, that Act is

subject to strict scrutiny; but that (2) the Act also

<a

falls under the rational relation test applied by the

U.S. Supreme Court to age retirement statutes which

did not cover elected officials. Thus, it was not accurate

for the Panel to conclude that “the plaintiff judges here

concede that the rational relationship standard is appli-

cable and contend only that the Court failed to apply the

correct standard properly.” 594 F.2d 623 at 626.

The decision below referred to the decision of this Court

just rendered in Illinois State Board of Elections v.

Socialist Workers Party, ........ Ceaes eeinnesd , 47 LW 4197

(Feb. 22, 1979), wherein the Illinois requirement for mini-

mum signatures on petitions by independent candidates

was held violative of the Fourteenth Amendment, and

commented :

Although language in that case, 47 U.S.L.W. at 4200,

could be read as subjecting any classification that

limits voters’ choices, in whatever manner or how-

ever incidentally, to a strict scrutiny standard, we

interpret that language as referring to the situation

before the Court in that case and not as withdrawing

sub silentio the statement in Bullock that “not every

limitation or incidental burden on the exercise of

voting rights is subject to a stringent standard of

review.” 405 U.S. at 143. It was consistent with that

statement to apply the strict scrutiny standard to a

classification that “impairs the voters’ ability to ex-

press their political preferences.” 47 U.S.L.W. at

4200. In both Bullock and Illinois State Board of

Elections, the classification burdened identifiable

groups of candidates or voters, identifiable in one

case by their economic status and in the other by

their political preferences. 594 F2d 623 at 632.

Referring to prior Circuit opinions that it understood

to support its reading of the Supreme Court opinion,

asliiiiaes

the Court below overlooked other precedent as well as

the reasoning of this Court.

Socialist Workers was based on a vital premise:

Restrictions on access to the ballot burden two

distinct and fundamental rights, “the right of in-

dividuals to associate for the advancement of political

beliefs, and the right of qualified voters, regardless

of their political persuasion, to cast their votes

effectively. (Emphasis added.)

Socialist Workers, Id, 47 U.S.L.W. at 4200, citing Williams

v. Rhodes, 393 U.S. 23 at 30 (1968). This Court amplified

its view of those “fundamental rights” which require

strict scrutiny and must be justified by a “compelling

state interest”:

The freedom to associate as a political party, a right

we have recognized as fundamental, see id., at 30,

31, has diminished practical value if the party can

be kept off the ballot. Access restrictions also impli-

cate the right to vote because, absent recourse to

referendums, “voters can assert their preferences

only through candidates or parties or both.” Lubin

v. Panish, 415 U.S. 709, 716 (1974). By limiting the

choices available to voters, the State impairs the

voters’ ability to express their political preferences.

And for reasons too self-evident to warrant amplifi-

cation here, we have often reiterated that voting is of

the most fundamental significance under our constitu-

tional structure. Wesberry v. Sanders, 376 U. 8. 1,17

(1964); Reynolds v. Sims, 377 U. 8. 533, 555 (1964) ;

Dunn v. Blumstein, supra, at 336.

When such vital individual rights are at stake, a

State must establish that its classification is necessary

to serve a compelling interest. American Party of

Texas v. White, 415 U. 8. 767, 780-781 (1974); Storer

v. Brown, 415 U. 8S. 724, 736 (1974); Williams v.

Rhodes, supra, at 31. To be sure, the Court has

= =

previously acknowledged that States have a legiti-

mate interest in regulating the number of candidates

on the ballot. * * [Citing Lubin v. Pantsh, supra, and

Bullock v. Carter, 405 U. S. 134, 145 (1972)] * * °

Consequently, we have upheld properly drawn statutes

that require a preliminary showing of a significant

modicum of support” before a candidate or party

may appe.r on the ballot. Jenness v. Fortson, 403

U. 8S. 431, 442 (1971); see, e.g., American Party of

Tegas v. White, supra.

However, our previous opinions have also emphasized

that “even when pursuing a legitimate interest, a State

may not choose means that unnecessarily restrict

constitutionally protected liberty.” Kusper v. Pontikes,

414 VJ. S. 51, 59 (1973), and we have required that

States adopt the least drastic means to achieve their

ends. Lubin v. Panish, supra, at 716; Williams v.

Rhodes, supra, at 31-33. This requirement is particu-

larly important where restrictions on access to the

ballot are involved. Socialist Workers, Id, 47 U.S.L.W.

at 4200. (Emphasis added.)

Finding that the Illinois Legislature had not used “the

least restrictive means of protecting the State objectives,”

the Illinois signature requirement was stricken. In his

concurring opinion, Mr. Justice Blackmun made clear

that he read the majority opinion to constitute a “strict

scrutiny approval for election cases” in which he joined.

Id, 47 U.S.L.W. at 4201.

The ruling in Socialist Workers was anticipated by

similar statements from Chief Circuit Judge Swygert in

the Seventh Circuit and in recent opinions by the First

and Fifth Circuits.

In Blassman v. Markworth, 359 F. Supp. 1 (N.D. IIL,

1973) (three Judge panel), a case in which a minimum

— ven

age qualifiwation for school board candidates was upheld,

Chief Circuit Judge Swygert stated in his concurring

opinion the general rule that:

“ .. any state action that substantially restricts the

right to candidacy must be given strict scrutiny and

meet the test that the restriction is justified by a

compelling state interest.” 395 F. Supp. at 8. (Empha-

sis supplied.)

Judge Swygert cited Mancuso v. Taft, 476 F. 2d 187

(ist Cir., 1973), for that proposition, and concurred in

Judge Decker’s opinion in Blassman upholding the mini-

mum age restriction only because until adoption of the

Twenty-Sixth Amendment, the minimum age of 21 for

voting could not, by reason of the Fourteenth Amend-

ment, be exceeded by the states.’

“.. . 80 long as a State does not set the voting age

higher than 21, the reasonableness of its choice [at

or below that age] is confirmed by the . .. Fourteenth

Amendment... .” (Emphasis added.)

In that context, Judge Swygert’s citation of Mancuso

v. Taft, swpra, is instructive. In Mancuso, a eity police

Officer attacked part of a city home rule charter that

barred him from continuing in his employment if he ran

for public office. Viewing the charter as an effective limit

on both candidate and voter rights, the First Circuit

struck the law, holding:

“. .. that candidacy is both a protected First Amend-

ment right and a fundamental interest. Hence any

legislative classification that significantly burdens that

*Judge Decker in Blassman, 359 F. Supp. at 6 relied on

the statement of Justice Stewart concurring in Oregon

v. Mitchell, 400 U.S. 112 at 294-5, n. 14 (1970) Vas

— so

interest must be subjected to strict equal protection

review.” 476 F. 2d at 196 (Emphasis added.)

After discussing the First Amendment rights af-

fected by curbs on candidacy, that Court found that be-

cause candidacy is both a First Amendment right and a

fundamental interest, any legislative classification that

burdens that interest must be subjected to the strict

scrutiny test under Fourteenth Amendment equal protec-

tion standards:° Finding the flat prohibition against any

candidacy to be overinclusive and not reasonably neces-

sary, the Court struck it.

* In Mancuso, supra, the Court stated:

“Standard of Scrutiny

“Appellee’s complaint, simply put, is that Cranston

has divided its citizenry into two groups for purposes

of candidacy for public office: in one group, all

classified civil servants, who are prohibited from filing

as candidates; and, in the other, all other citizens,

free to run for office, subject only to general age

and similar requirements.

* * *

The Supreme Court has tended to use one of two

standards for review when determining whether a

particular state action violates the equal protection

clause of the Fourteenth Amendment. For state action

concerning economic regulation and taxation, the

Court has employed a relaxed review, upholding the

challenged action if it is sustained by some rational

and legitimate state interest. * * * For state action

which substantially infringes fundamental interests,

however, the Court has subjected the state action to

stricter scrutiny, requiring the state to show that its

action is necessary to promote a compelling state

interest.

In evaluating candidacy restrictions there are two

wmterlocking wterests, both fundamental, that must be

~_ =

Since Mancuso, supra, the Fifth Circuit also applied

the strict scrutiny test to a state law burdening candidate

and voter rights by imposing a three-year residency

requirement “as a qualified voter” on candidates for

school boards. Henderson v. Fort Worth School District,

526 F. 2d 286 (5th Cir. 1976). Since three years of resi-

dency required also that candidates be “qualified voters”

2° (Continued)

considered. We naturally consider the rights asserted

by the plaintiff in claiming the opportunity to become

a candidate for public office. But whenever a state

or city regulates the right to become a candidate

for public office, it also regulates the citizen’s right

to vote; the person or persons whose candidacy is

affected may be the voters’ choice for public official.

«9

A. Voting Rights

In Bullock, the Chief Justice stated that not every

candidate restriction affects the right to vote

sufficiently to require a strict equal protection review

of the restriction. The task of the federal courts

is to ‘examine in a realistic light the extent and

nature of their impact on voters.’ 405 U.S. at 143, 92

S. Ct. at 856. ° °°

We note initially that while in Bullock the filing

fees were so large that they indirectly limited the

pool of candidates, here the pool is directly and

substantially limited by a prohibition on the candi-

dacies of a specific class of people—the public em-

ployees of Cranston. * * *

Secondly, the Cranston charter excludes a specific

group with unique qvalifications for public office. City

employees have made government their daily work.

They see the work of government within their depart-

ment and as their department deals with the public

and other parts of government, local, county, state,

and national. They ought to be able to pinpoint

problems and formulate solutions much more effec-

—1¢—

during that period, the Court viewed the restriction as

imposing a minimum age (at least three years older than

the voting age) as well as a residency requirement. 526

F, 2d at 289. The barrier of three year residency and

age restrictions before the Court in Henderson was seen

to be of such impact as to warrant strict construction:

“It is absolute in its operation. No exception is made

for expertise, familiarity, or the extent of political

support... .” 526 F. 2d at 291-2.

‘. . . denies access to what must be assumed is a

significant number of potential school board candi-

duties, and on that basis the statute’s impact on voters

is substantial.” 526 F. 2d at 292 (Emphasis added.)

‘

*° (Continued)

tively than many other citizens. The experience and

msight garnered from day-to-day grappling with the

bureaucracy could well make these individuals par-

ticularly attractive to the voters. For these reasons,

then, we find that the fundamental interest of the

right to vote is significantly affected by §14.09(c)

of the Cranston charter and that therefore strict equal

protection review must be applied.

B. First Amendment Rights

We now inquire whether the interest of the individual

in running for public office is an interest protected

by the First Amendment, so that any law which

significantly infringes that interest must be given

strict review. The Supreme Court has never directly

decided this point. However, Williams v. Rhodes,

— strongly suggests that the activity of seeking

pu

lic office is among those protected by the Fi

Amendment. * * * 8 Pp y the First

The right to run for public office touches on two

fundamental freedoms: freedom of individual ex-

pression and freedom of association. * * * 476 F. 24

at 192-95. (Emphasis added.) (Footnotes omitted. )

on

In language directly applicable herein, the court in

Henderson, supra, rejected the asserted purpose of the

statute :

“The argued justification for section 7 is the state’s

interest in a ballot composed of knowledgeable and

qualified candidates for the increasingly complex job

of school board member. However, voter registration

for a period of three years is, at best, a crude index

of the capabilities of a potential candidate. The back-

ground, experience, and political views of the poten-

tial candidate are, among others, the indicia of merit

and capability. No one contends, or could, that the

state is empowered to impose qualifications or re-

quirements in these areas. On the contrary, the power

to make necessarily subjective discriminations on

the basis of background, experience, or political

philosophy rests with the voters of the Fort Worth

School District. Jt can be assumed that opposing

candidates will bring deficiencies in any of these areas

to the attention of the voters.” 526 F. 2d at 292.

(Emphasis added.)

Here as well the legislative interest asserted by de-

fendants at trial—that of promoting a “more vigorous

judiciary” through mandatory retirement by age limit —

imposes what is “at best, a crude index of the capabilities

of a potential candidate.” Here, too, the deficiencies in

vigor of any judge — should one slip by the heretofore

completely effective devices employed in Illinois for early

retirement of non-vigorous judges’ — can be brought to

the attention of the voters. Here, as in Henderson, supra,

"On the record below, it was uncontradicted that in-

formal efforts of Court administrators in Tllinois, backed

by enforcement machinery, brought voluntary retirement

of all non-vigorous judges, leaving only vigorous judges

to be retired by reason of age,

bs Waa

the Retirement Act “is absolute in its operation”, and

“no exception is made for expertise” or, for that matter,

judicial vigor. Thus strict scrutiny is likewise applicable

herein, and for the same reason the Retirement Act

cannot survive that scrutiny.

Arguments and briefs to the District Court and Seventh

Circuit below asserted under the Fourteenth Amendment

both the strict scrutiny test based on denied ballot access

and voter rights, and alternatively, the rational relation-

ship test based on precedent in cases dealing with age

retirement of non-elected persons. The District Court

blow dealt only with the rational relationship test. The

Findings reflect no examination of “the extent and nature

of [the] impact on voters” of the restriction at issue here,

as required by Bullock v. Carter, 405 U.S. 134 (1972). The

District Court’s Conclusions of Law similarly fail to ad-

dress that issue. They state only:

“17. The rights of the class of plaintiff voters do

not exceed the rights of the class of plaintiff judges.

Since the class of plaintiff judges are lawfully subject

to the terms of the Act, no rights of the class of

plaintiff voters are impaired.”

Nor did the Court of Appeals carry out the analysis

required by Bullock. The Court of Appeals sought to limit

striet scrutiny to ballot restrictions applicable “to ex-

clude candidates of an identifiable group [limited to eco-

nomic status] or viewpoint.” 594 F.2d at 632 (insert sup-

plied). That view conflicts with the premise of democracy

—that for all elective offices, the voters decide who is

qualified, or “vigorous” for that matter, except in limited

areas strictly reviewed.

Political preferences and viewpoints are not limited

to political parties but are also expressed through support

a= 19...

of candidates and identification with voter constituencies

based on a wide variety of factors including their stand

on issues, occupation, personal background and age, A

reality ignored by the court below is. that older voters

represent an important and growing political constitu-

ency. The principle of Socialist Workers Party and similar

cases is not confined to political preferences of candi-

dates and voters of a particular political party,The Court

of Appeals decision would permit a Legislature to cut

off a 60 or 65 year old Governor or other official from re-

election, or impose some other maximum age based on

“any state of facts” that may be argued, so as to open

those offices for other persons, subject only to the “ra-

tional relation” test. Surely the right to run for office and

the right to vote for candidates does not rest on such a

weak Constitutional base.

II

THE ILLINOIS COMPULSORY RETIREMENT OF

JUDGES ACT VIOLATES THE EQUAL PROTECTION

OLAUSE OF THE FOURTEENTH AMENDMENT BE.

OAUSE OF THE CLASSIFICATIONS CONTAINED IN

SECTION 2 OF THE AOT.

As previously shown, Section 2 of the 1965 Act deferred

for up to eighteen years the retirement of many judges

sitting when the law was passed in 1965, and by 1973

amendment permitted some judges to sit beyond age 70

until obtaining pension benefits. The record shows that

Section 2 was added after the law failed of adoption in

1963, and there was need to broaden protection to sitting

judges so as to obtain necessary support in the Legis-

lature. Thus, sitting judges were protected in their rights

to sit long enough to earn maximum retirement benefits.

The net result was to protect some judges in their right

= ian

to serve into their late 70’s and 80’s, many of whom

still continue to serve. Those judges have the same duties

as those in the Judge Petitioner Class, and each judge

in both groups must of course stand for election and

re-election at the end of each term. Thus, judges similarly

situated are treated differently by the Act, depending

on when they took office. It has nowhere been suggested

that the date of the protected judges taking office prior

to 1965 has any relation to the vigor or other capacity

of judges at age 70. Nor was any explanation offered

for the 1973 special savings clause, except the testimony

that it was enacted to protect one or more judges deemed

loyal party workers — again, a purpose unrelated to any

purpose asserted or contemplated by the lower courts

for mandatory retirement.

Thus, part of the affected class of judges was protected

for reasons having no relation to any purpose suggested

for retirement based on age. Indeed, if retirement based

on age is found to be rationally related to a proper

purpose, then holding some judges in office past that age

is directly contrary to any such purpose.

For reasons set forth in Part I of this Petition, this

distinction between judges disqualified from elective office

and those “grandfathered” into office cannot stand strict

scrutiny under the Fourteenth Amendment.

Moreover, authority supporting “grandfather clauses”

which discriminate in favor of members of class is not

applicable here because such authority (1) is limited

to.economic regulation, not access to elected public office,

(2) requires the exception to be related to the purpose

of the law itself, not some other purpose, and (3) Illinois

judges reenter the class anew each time they run for

reelection or retention.

—

The Court of Appeal’s rejected the challenge to the

Act based on reading §2 thereof in conjunction, with §1.

It first cited Vance v. Bradley, ........ UB. sissisa , 41 U.S.L.W.

4176 at 4181 (Feb. 22, 1979) as authority that $2 ‘‘may

be rationally related to a different legitimate state. in-’

terest [than that asserted or considered for §1], and

constitutional for that reason.” 594 F.2d at 630 (in-

sert supplied.) But while Vance at the portion cited

may be read to permit a court to consider any possible

rationale to justify a statute not governed by strict

scrutiny, that case did not deal with distinctions within

an affected class. The law in Vance affected all foreign

service officers. :

The Court of Appeals reasoned that the §2 distinction

between judges was justified because it enabled judges

elected prior to the enactment of mandatory retirement to

obtain judicial pensions. The Court reasoned that those

judges had relied on the absence of mandatory retirement

at the time of their election, and therefore the Legislature

could give them special protection to enable them to obtain

their pensions. 594 F.2d at 630-1, aaa

To the contrary, it is clear from the record that the

judges in office in 1965 were judges who were elected or

appointed between 1962 and 1965, at a time when the

former Illinois Constitution permitted the enactment of

judicial mandatory retirement. Thus, such judges can-

not be said to have relied on the absence of mandatory

retirement. And the 1973 sitting judges who were specially

protected clearly had no such reliance interest. —

Moreover, the law does not support the classification

here. To be constitutionally valid the classification’ must

be rationally related to some purpose of the Act itself.

No such showing was made or found below.

—

In City of New Orleans v. Dukes, 427 U.S. 297 (1976),

this Court considered an ordinance prohibiting street

vendors in the City’s ‘‘French Quarter.’’ The ordi-

nance exempted from its provisions vendors who had

continually operated their businesses in the French

Quarter for a period of at least eight years prior to

the. effective date of the Act. Faced with plaintiff’s

equal protection challenge to the ordinance, the Court

first. recognized that the legislature may permissibly

choose to implement its economic regulations ‘‘step-by-

step,’’ but then considered whether the exemption created

by the grandfather clause rationally furthered the City’s

purpose in passing the new law. 427 U.S. at 303. The

Court found that the purpose of the ordinance was to

preserve the charm and beauty of the French Quarter,

and noted that the vendors exempted from the statute’s

prohibition ‘‘had themselves become part of the distinc-

tive character and charm that distinguishes the Vieux

Carre.’’ Id. at 305. Based upon this recognition, the

Court found that the

‘‘city’s. classification rationally furthers, the purpose

which ... the city had identified as its objective in

enacting the provision, that is, as a means ‘to pre-

serve the appearance and custom valued by the

Quarter’s residents and attractive to tourists.’ 3 427

U.S. at 304,

In other cases in which a clause excepting certain in-

dividuals from a licensing statute has been expressly

discussed, the classification so established rationally fur-

thered the state’s interest, as evidenced by the overall

statutory scheme. See, e.g., Watson v. Maryland, 218

U.S. 173, 176-77 (1910) :

- “Yn such statutes there are often found excep-

tions in faver of those who have practiced their

calling for a period of years. In the Dent case

[Dent v. West Virginia, 129 U.S. 114 (1889)] an ex-

ception was made in favor of practitioners of medicine

who had continuously practiced their profession for

ten years prior to a date shortly before the enactment

of the law. Such exception proceeds upon the theory

that those who have acceptably followed the profes-

sion in the community for a period of years may

be assumed to have the qualifications which others are

required to mamifest as a result of an examination

before a board of medical experts. 7? (Emphasis

added.)

In these and similar cases involving ‘‘grandfather

clauses,” the legislation being challenged was enacted

pursuant to the State’s authority in the area of economic

regulation, an area in which wide legislative discretion

is permitted. Indeed, the Court in New Orleans v. Dukes,

supra, repeatedly emphasized the purely economic nature

of the contested ordinance considered therein, and per-

mitted the challenged clause to stand only under the

minimal analysis accorded leginintion i in _ that area. 426

U.S. at 303-6.

Moreover, these cases upheld true ‘‘grandfather

clauses’’: clauses which gave special protections to per-

sons in the class at the time the law was enacted. None

of those cases permitted special protection to extend to

some persons who enter the class later, while discrim-

inating against others who newly enter it. Here, in con-

trast, the special protections continued for judges who

re-entered the class each time they were re-elected by

retention election every six years. That is, judges on the

bench in 1965 only held certificates of election or reten-

tion for the duration of their terms. At the expiration

of their terms, they had to be re-elected. A true “‘grand-

; :

ie

father clause’’ in the sense of curing an economic prob-

lem, if applied here, would have protected the 1965 sitting

judges only until the end of their terms. But when they

re-entered the class (i.e., the judiciary), through re-

election, they should have had to serve under the same

“restrictions of all new entrants. Here, of course, that was

not the case. To obtain legislative support to pass the

mandatory retirement act at all, all judges then on the

‘bench received blanket protections that carried tmto their

future terms of office. Thus, while all judges were equal

in terms of their judicial authority and work, as they

were re-elected, some where ‘‘more equal’’ in terms of

retirement. Indeed, the 1973 savings clause highlighted

the original discrimination while creating a new special

discrimination in favor of judges on the bench in that

year,

The true ‘‘grandfather’’ cases, therefore, dealt not

with a bald dispensation afforded to members of a

‘privileged class merely on the basis of the date they

took office, but with exceptions to a new statutory man-

date, with the exceptions found to further the new stat-

ute’s purpose. Obviously, if removal at age 70 insures

judicial vigor or serves some other purpose, permitting

judges to remain in office for years beyond age 70 does

not. Thus, no constitutionally permitted justification exists

for the distinctions within the class of judges. Con-

sequently, they are irrational distinctions which violate

the Equal Protection Clause and are unconstitutional.”

* The reliance of the Court below on Williams v. Lee

Optical Co., 348 U.S. 483, 489 (1955) and Katzenbach v.

organ, 384 U.S. 641, 657 ( ) is likewise misplaced.

In Williams, supra, all opticians were equally affected.

They objected because sellers of ready-to-wear glasses

were omitted from regulation. To this objection that a

different and additional class should have been included

— ae

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

GOTTLIEB and SCHWARTZ

DAVID GOLDBERGER

ROGER BALDWIN FOUNDATION

AMERICAN CIVIL LIBERTIES UNION

5 South Wabash Avenue

Illinois 60603

* (Continued)

in the law the Court responded with language permitting

‘‘reform ... one step at a time.’’ In that case, there

were no distinctions within the class affected by the law

in issue.

In Katzenbach, supra, the franchise rights of voters

was expanded by the Voting Rights Act of 1965. It was

attacked in part on grounds that it extended voting

rights to all those who attended Puerto Rico schools, as-

sertedly discriminatory against those who attended schools

elsewhere not affected by the law. To this, the Court

pointed out that the law expanded the franchise for some

people, and did not limit any rights to anyone. Since

rights were not being denied or curtailed, once again

‘‘reform may take one step at a time... .’’ Katzenbach,

— 384 U.S. at 657. In the case at bar, rights to hold

public office are obviously being curtailed, and Kateenbach

clearly does not apply.

|

|

APPENDIX

3n the

Gnited States Court of Appeals

For the Seventh Circuit

No. 78-1941 ©

RAYMOND E. TRAFELET, et al.,

Plaintiffs-A ppellants,

Vv.

JAMES R. THOMPSON, et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78 C 1036—Prentice H. Marshall, Judge.

ARGUED DECEMBER 5, 1978—DECIDED MARCH 16, 1979

Before TONE, LAy,* and BAUER, Circuit Judges.

TONE, Circuit Judge. This action challenges the con-

stitutionality of the [Illinois Compulsory Retirement of

Judges Act. Section 1 of that Act, Ill. Rev. Stat. ch. 37

| §§ 23.71 (1977), provides in substance that a judge is

automatically retired after the next general election

‘ The Honorable Donald P. Lay, Circuit Judge of the United

States Court of Appeals for the Eighth Circuit, is sitting by

designation.

2 No. 78-1941

following his 70th birthday.! Section 2, id. § 23.72,

creates grandfather exceptions to § 1, which, so far as

they are pertinent here, allow the em judges to re-

main in office until they have served long enough to

secure certain pension rights.? After a trial, the district

court held that the Act did not violate either the United

States Constitution or the Illinois Constitution and

entered judgment for the defendants. We affirm the

judgment.

1 Section 1 provides as follows:

A judge is automatically retired on the first Monday of

December next after the general election at which

members of the General Assembly are elected immediatei

following the attainment of age 70 of such judge. Suc

judge shall conclude all matters pending before him unless

the Supreme Court makes other provisions for the

disposition of such matters.

2 Section 2 provides as follows:

The provisions of Section 1 [23.71] of this Act are

suspended, however, with respect to any j in office on

the effective date of this Act [July 20, 1965]. Such judge

may continue to serve until the occurrence of one of the 3

following dates whichever occurs last: (1) January 1, 1976;

or (2) the date upon which such judge completes 18 years

of judicial service in courts of record including all such

service rendered prior to, on, and after the effective date

of this Act; or (3) the date upon which such judge reaches

age 70. The provisions of Section 1 of this Act are also

suspended as to any judge in office on June 30th, 1973

who cannot fulfill the minimum eligibility requirements

under the Ju Retirement System of Illinois, Article 18

of the Illinois Pension Code [Ill. Rev. Stat. ch. 108% § 18-

101, et seg., (1977) }, on the day of his becoming ,

but who can do so by remaining in office after age 70 for

the balance of his current term.

Upon reaching the date prpvided in this Section 2,

whichever is appropriate, such judge is retired on the first

Monday in December next after the general election for

members of the General Assembly occurrin gos nage

after such retirement except that such judge sh

complete all matters pending before him unless the

Supreme Court makes other provisions for the disposition

of such matters.

No. 78-1941 3

The district court certified two classes of plaintiffs: (1)

all judges of the Supreme, Appellate, and Circuit Courts

of Illinois whom the Act will force into retirement

before the expiration of their certified terms or preclude

from running for retention in office; and (2) all

registered voters in Illinois who will be denied the o

portunity to vote for the judicial candidates of their

choice because the Act precludes those candidates from

running for election to, or retention in, office. The defen-

dants are the state officers responsible for executing the

provisions of the challenged statute.

The plaintiff judges assert several challenges to the

Act. Section: 1 (§ 23.71) is attacked on two federal

grounds:

(1) It is said to violate the equal protection

clause of the Fourteenth Amendment by oe

distinctions between judges of the age of 70 an

older and judges younger than 70, and between

judges and all other elected officials, who are not

subject to mandatory retirement provisions. These

distinctions, it is argued, are not rationally related

to the stated purpose of the Act.

(2) It is said to violate the due process clause of

the Fourteenth Amendment by creating an

irrebuttable presumption.

Section 2 of the Act (§ 23.72) is attacked on one

federal and one state ground:

(1) It is said to violate equal protection by allow-

ing certain judges to remain in office beyond the

3 In Illinois, elected judges who seek another term in office

run unop on a non-partisan “retention ballot” and must

get the affirmative vote of three-fifths of the electors voting on

the question. Ill. Const. art. VI, § 6(d) provides in pertinent

part as follows:

... The names of Judges seeking retention shall be sub-

mitted to the electors, separately and without party

designation, on the sole question whether each Judge shall

be retained in office for another term. ... The affir-

mative vote of three-fifths of the electors voting on the

question shall elect the Judge to the office ....

4 No. 78-1941

age of 70 on the basis of criteria unrelated to the

purpose of the Act.

(2) It is said to violate Article VI, § 1a) of the

Illinois Constitution‘ by failing to prescribe a single

age at which judges must retire.

The plaintiff voters assert that the Act violates their

rights under the protection clause by discrimi-

natorily denying m the opportunity to vote for

candidates of their choice.

The Judges’ Claims

1. Equal Protection Challenges to § 1 of the Act.

The applicable standard is whether the challenged

ae Bd rr. = to a proper | il

urpose. Neither ight of governmental employment,

Hasonehionsthe Board of Retirement v. Murgia, 427 U.S.

307, 313 (1976), nor the right to run for elective office,

Bullock v. Carter, 405 U.S. 134, 142-143 (1972), is

fundamental. See J. Nowak, R. Rotunda, and J. N.

Young, Handbook on Constitutional Law 686 and 643

(1978) and L. Tribe, American Constitutional Law,

Pai at 775-777 (1978). Judicial office is no exception.

apolitano v. Ward, 457 F.2d 279, 284 (7th Cir. 1972),

cert. denied, 409 U.S. 1037 (1973). Furthermore, age is

not a suspect classification for equal protection purposes.

Massachusetts Board of Retirement v. Murgia, supra, 427

U.S. at 313-314. Accordingly, like the plaintiffs in Vance

v. Bradley, ..... US. ....., 47 U.S.L.W. 4176, 4177 (Feb.

22, 1979), in which the Supreme Court sustained a

statute providing for mandatory retirement of Foreign

Service officers at age 60, the plaintiff judges here

concede that the rational relationship standard is

applicable and contend only that the court failed to

apply the correct standard properly.

The judges do argue, however, that we may Eropenty

consider only those legislative purposes articulated by

‘ Til. Const. art. VI, § 1&{a) reads in relevant part:

The General Assembly may provide by law for the

retirement of Judges and Associate Judges at a prescrib-

age.

A A EIT CE i SUIS

No. 78-1941 5

the state at the time the statute was enacted. Whatever

doubt on this point may have been engendered by

language in some of the cases in recent years® seems to

have been resolved by the Supreme Court’s recent

opinion in Vance v. Bradley, supra. There the Court,

referring to the rational relationship standard, said,

In an equal protection case of this type...

those challenging the legislative judgment must

convince the court that the legislative facts on

which the classification is apparently based could

not reasonably be conceived to be true by the

governmental decisionmaker.

47 U.S.L.W. at 4181. In support of that statement the

Court cited several cases stating the standard of

whether any state of facts may reasonably be conceived

to justify the classification® and described McGinnes v.

Royster, 410 U.S. 268, 274 Fede with vg oem

approval as “finding that the legislature ‘could have

concluded rationally that’ certain facts were true.” We

conclude that we are not limited to the legislative

purpose articulated by the state at the time of

enactment, although even if we were we would sustain

the statute.

A review of the history of the Act reveals its purpose.

In creating the Judicial Advisory Council of Ilinos in

1957 the Illinois General Assembly provided,

The Council shall, by continuous study of the

problems involved, devise means to effect the im-

provement of the administration of justice in and

5 See White v. Fleming, 522 F.2d 730, 736 n.8 (7th Cir. 1975).

Plaintiffs rely particularly on the statement in Massachusetts

Board of Retirement v. Murgia, supra, 427 U.S. at 314, that

“. . . the State’s classification rationally furthers the purpose

identified by the State,” which is not the same as saying no

other purpose would have been considered.

6 In the first case cited, Lindsley v. Natural Carbonic Gas

Co., 220 U.S. 61, 78 (1911), the Court said,

([I]f any state of facts reasonably can be conceived that

would sustain [the changed statute], the existence of that

state wt facts at the time the law was enacted must be

assumed.

6 No. 78-1941

with relation to the State, and to formulate all

Suggestions and recommendations concerning

legislation and other measures designed to bring

about such improvement.

Ill. Rev. Stat. ch. 37, § 605 (1957). In pursuit of this goal,

the Council recommended the legislation on mandatory

retirement that became the Act before us. When that

legislation was introduced in the legislature in 1963, the

oo announced the specific purpose of §1 as

ollows:

It is the consensus of the Council that a mandatory

retirement at age 70 will tend to insure a more

vigorous judiciary to which the public is entitled.

Report of the Judicial Advisory Council of Illinois 9-

10 (June 1963) (Submitted to the Governor and the

Seventy-Third General Assembly of the State of Illinois).

Thus it is fair to infer that the purpose of the Act was

to further this articulated purpose of insuring a more

vigorous judiciary.

Plaintiffs contend that the classification created in § 1

of the Act is not rationally related to that purpose. First,

they argue that the state has no rational basis for man-

datorily retiring judges but no other elected state of-

ficials. Second, they e that there is no rational basis

for treating judges differently when they reach age 70,

and that the Illinois laws for removing judges under age

70 from office should serve as well for judges 70 and

over.

The se om could rationally have justified treatin

judges differently from other officials on the groun

that the work of re makes unique and exacting

demands on faculties that age tends to erode. Although

the defenders of the statute were not required to

establish by evidence a rationality that is obvious from

the common experience of mankind, see Vance v.

ey, supra, 47 U.S.L.W. at 4181 & n.28, they

nevertheless did so. The district court found that

published scientific data, some predating the enactment

of the Act in 1965, show an association between aging,

7 See Ill. Const. art. VI, §§ 1Xb){g), described in note 8, infra.

iia i

No. 78-1941 7

specifically during the sixth and seventh decades of life,

and a decline in intellectual function and personality

factors. It is irrelevant that evidence was adduced to

rebut this data:

It makes no difference that the facts may be

disputed or their effect oppore by argument and

opinion of serious strength. It is not within the

competency of the courts to arbitrate in such

contrariety.

Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357

(1916), quoted in Vance v. Bradley, supra, 47 U.S.L.W.

at 4181.

The equal protection clause does not prohibit the

legislature from adopting a more rigorous policy for

assuring excellence in the judic than for other

elective offices. As the Supreme Court said of the

Foreign Service in Vance v. Bradley, supra, 47 U.S.L.W.

at 4179,

The judgment that the Foreign Service needs such

a system more than do many other departments is

one of policy, and this kind of policy, under our

constitutional system, ordinarily is to be “fixed only

by the people acting through their elected repre-

sentatives.”

Citing Fireman v. Chicago, R. I. & P. R. Co., 393 US.

129, 138 (1968).

If more were needed, it would also be relevant that

judges are the only public officeholders in Illinois who,

once elected, are not op by another candidate when

they seek reelection but rather “run against their

records.” See note 3, supra. Because of this retention

m, it is much more difficult to disl a judg

an official who must run against another candi-

date. Mandatory retirement for judges is rationally

related to the difference in the retention rights of judges

and other elected officials.

M j compelled to retire at 70 will still be

highly comntent When, however, a statutory require-

ment of retirement at a given age is tested by the

8 No. 78-1941

rational relationship standard, the line drawn by the

legislature will be accepted where “[tjhere is no indica-

tion that [the statute] has the effect of excluding from

service so few ... who are in fact unqualified as to

render age. . . a criterion wholly unrelated to the objec-

tive of the statute.” Massachusetts Board of Retirement v.

Murgia, supra, 427 U.S. at 315-316. See also Vance v.

, supra, 47 U.S.L.W. at 4180-4181 (the classifica-

tion was not made invalid by “the fact that individual

Foreign Service employees may be able to perform past

age 60”); Weinberger v. Salfi, 422 U.S. 749, 776-777

1975); Dandridge v. Williams, 397 U.S. 471, 485 (1970);

indsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78

(1911). Perfection is not required and whether “we...

think [the legislature] was unwise in not choosing a

means more mong reiated to its prim purpose is

irrelevant.” Vance v. Bradley, supra, 47 U.S.L.W. at

4181.

It follows that the existence of other means for

evaluating a judge’s performance, on which plaintiffs

rely, does not render mandatory retirement at age 70

unconstitutional. In Massachusetts Board of Retirement v.

Murgia, supra, 427 U.S. at 316, the Court stated:

That the State chooses not to determine fitness

more precisely through individualized testing .. .

is not to say that the objective of assuring physical

fitness is not rationally furthered by a maximum-

age limitation.

If it were necessary to go further, it could readily be

demonstrated that here, more than in Murgia, there are

reasons to consider individualized evaluations an

inadequate substitute for a maximum age limitation.

Fitness to be a policeman is more susceptible of

objective evaluation than fitness to be a judge, because

decline in the intellectual ability and the personality

factors essential for effective judicial performance are

more difficult to measure than decline in physical

condition. The Illinois evaluation means to which

plaintiffs refer involve an investigation, a complaint,

an BRT Ale

No. 78-1941 9

and an adjudicative hearing.’ As a practical matter, this

cumbersome individualized removal procedure, attended

as it is with stigma to the judge, is unlikely to be used

except in the most extreme cases. Informal pressures to

retire are scarcely more effective. Usually the reluc-

tance of judges to ask a colleague to step down is

exceeded only by his reluctance to do so. It was entirely

8 The evaluation process, set forth in Ill. Const. art. VI

§§ 15(b)}{g), requires prosecution by a Judicial Inquiry Board

in a public hearing before the Courts Commission, which has

authority to order, inter alia, mandatory retirement of the

judge. “A Judicial Inquiry Board is created . . . with authori-

ty to conduct investigations, receive or initiate complaints con-

cerning a Judge or . iate Judge, and file complaints with

the Court Commission . . . . The shall prosecute the

complaint{s].” The Courts Commission, which consists of one

Supreme Court Judge, two Appellate Court Judges, and two

Circuit Court Judges, has “authority after notice and public

hearing, . . . (2) to suspend, with or without pay, or retire a

Judge or Associate Judge who is physically or mentally un-

able to perform his duties.”

7% wee an Hughes, The Supreme Court of the United States 75-

Justice Field tarried too long on the bench. It is extraor-

dinary how reluctant aged judges are to retire and to give

up their accustomed work. They seem to be tenacious of

the appearance of adequacy. I heard Justice Harlan tell of

the anxiety which the had felt because of the condi-

tion of Justice Field. It occurred to the other members of

the Court that Justice Field had served on a committee

which waited upon Justice Grier to his retire-

ment, and it was thought that recalling that to his

memory might aid him to decide to retire. Justice Harlan

was deputed to make the suggestio n. He went over to

Justice Field, who was sitting alone on a settee in the rob-

ing room apparently oblivious of his surroundings, and

r arousing him approached the question

asking if he did not recall how anxious the Court had

become with respect to Justice Grier’s condition and the

feeling of the other Justices that in his own interest and in

that of the Court he should give up his work. Justice

Harlan asked if Justice Field did not remember what had

— said to ert a Grier “ ae cousin. ban Ag pre

istened, grad became ale inally, wi

blazing with the old fire of youth, he burst out:

(Footnote continued on following page)

10 No. 78-1941

rational for the legislature to believe that the most

satisfactory way to insure a vigorous judiciary was to

impose a maximum age limitation.

It should be noted also that at ages one public pu

in addition to insuring a vigorous judiciary is served by

the Act. It can hardly be questioned that the risk of

death and disabling illness increases with age. Manda-

tory retirement thus reduces delays in the administra-

tion of justice caused by death or disabling illness of

sitting judges.

Our conclusion that mandatory retirement for judges

at age 70 does not violate the equal protection clause is

supported by the case law involving mandatory retire-

ment of various kinds of governmental officers and

employees. Vance v. B , supra, 47 U.S.L.W.

4176; Massachusetts Board of Retirement v. Murgia,

supra, 427 U.S. 307; Rubino v. Ghezzi, 512 F.2d 431 (2d

Cir.), cert. denied, 423 U.S. 891 (1975); Palmer v.

Ticcione, 576 F.2d 459 (2d Cir. 1978); Johnson v.

Lefkowitz, 566 F.2d 866 (2d Cir. 1977); Wetsbrod v.

Igmn, 383 F. Supp. 933 (D.D.C. 1974), Pd summarily,

420 U.S. 940 (1975): Mcllvaine v. ennsylvania State

Police, 454 Pa. 129, 309 A.2d 801 (1973), appeal

dismissed for want of substantial fe question, 415

U.S. 986 (1974).

2. Due Process Challenge to § 1 of the Act.

Plaintiffs argue that §1 violates the due process

— by creating an irrebuttable presumption that

judges become unfit to hold office at age 70.

9 continued

“Yes! And a dirtier day’s work I never did in my life!”

That was the end of that effort of the brethren of the

to induce Justice Field’s retirement; he did resign

not long after

This anecdote is also recounted in J. Frankel, “Removal of

Judges” 48 Judicature 177, 178 n. 11 (1965); 'R. Shogan, A

— of Judgment: The Fortas Case and the Si for the

preme Court 250 (1972); D. Jackson, Judges 275 (1974).

Raters angen =o wee

ee ee a ee ee ee ee

No. 78-1941 11

In Miller v. Carter, 547 F.2d 1314, 1316-1319 (7th Cir.

1977), affd by an y divided court, 434 U.S. 356

vot hg we exp! our uncertainty concerning the

and continuing force of the doctrine of irrebut-

tab e€ presumptions, and noted the ae a Court’s

failure to refer tothe doctrine in Massachusetts Board of

rrement v urgia, supra, w we thought “par-

ticularly striking in light of Mr. Justice Rehnquist’s dis-

sent in Cleveland Board of Education v. Lae 414

U.S. 632, 659 (1974), adverting specifically to the effect

of the irrebuttable resumption doctrine on mandatory

retirement statutes.” 547 F.2d at 1318 & n.16. Since our

upon the doctrine in any case, althou egg oe ong

had several opportunities to do so. Vance v.

oa also Friedman _ ‘ov ica , 47 US. LW

om oo get n.8 “TN 21, 1979); rinse ‘National Bank v.

765 (1978): Ohio Bureau of Employ-

seas aes © Hodory, 431 U.S. 471, 490 1.18 COT;

Fiallo v. Bell, 480 U.S. 787, 791 (1977);

Elkhorn Mining Co., 428 USS. 1, 22-24 1976)” Cf. —

v. Moreno, 435 U.S. 647 (1978). See deLaurier v. Sa

Drego Unified School District, No. 75-2096, slip op. _"

3536-3537 n.16 (9th Cir. Nov. 2, 1978).

A survey of Court of Appeals opinions written after

Miller reveals that we have not been the only court “un-

willing to plunge unnecessarily into the thicket of irrebut-

table presumptions . .” 547 F.2d at 1317. Among these

opinions we find only ‘one that relied solely on the

irrebuttable presumption doctrine to strike down a

statute: Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir.

1977), held that the oh mg ores School District’s policy

prohibiting blind teachers from teaching students who

were not blind violated due process by creating an

12 No. 78-1941

irrebuttable presumption of unfitness. The School Dis-

trict refused to give blind teachers the Philadelphia

Teachers Examination, thus depriving them of the op-

portunity, “i he to sighted teachers, to prove their com-

petency. The court found it unnecessary to evaluate the

equal protection arguments because it affirmed the trial

court’s pee Ang marr © 556 F.2d at 188, affg Gur-

= Galsnen 411 my oy Ly Pa. 1976);

Sous we do not know how Circuit views

ie — between the doctrine and equal protec-

w

Other courts have uniformly treated the ae ss of

irrebuttable prommaseas as coextensive with the Fea

Bohol. District o 9» y apg San Diego

supra, at 3505-0588 &'n. 16

sae ag - Caitfano, No. 77-1552, sli

Ay io at 1690 (4th Cr, ee pj ay 19, 1978), Martin v. Ha:

579 F.2d 1192, 1197-1199

LS Cir. soT eet v. Brown, 558 F.2d 757, 760

ve Phage 1977), cert. dented, 435 U.S. 926 (1978). In a

of decisions, most of which involve mandatory

mee Fa Phe statutes, the Second Circuit has om: a

: seltiaadie baail. than tt heult aa toi toe sua

pe, an Se a it should not fall because it might

also be Bagg weet Palmer v. Ticcione,

supra, 576 F.2d at 463 (mandatory retirement for

teachers at ae 70); Sakol v. Commissioner, 574 F.2d

694, 696-698 Cir.), cert. denied, ..... U.S. ..... , 99 S.Ct.

177 (1978); Johnson v. Lefkowitz, supra, 566 F.2d at 869

(mandatory retirement for civil service > at age

70); Rubino v. Ghezzi, supra, 512 F at 433 n.*

mandatory retirement for state court ju at age 70).

cases are consistent with the ~ usion

by Professors Nowak, Rotunda, and Young, in their

Handbook on Law, supra at 497, from an

examination of Supreme Court cases applying the

ne:

10 Vlandis v. Kline, 412 U.S. 44 Me of onenagh Board |

Education ». LaFleur, 414 US. 650 | 5! Jey” United

gf ron tee ey n

Department of Agriculture v. Murry, ast U.S. 508 (1973).

Oe

nm elk

No. 78-1941 13

It now seems readily apparent that these cases ac-

tually rest on an equal protection rationale, for the

objectionable portion of each law was the way in

which it classified individuals. It was arbitrary

classification . . . that was the impermissible basis

of these laws. In none of the cases would a “process”

have saved the law because the procedure would

only have determined whether an ndividual fitted

into one of these arbitrary classifications.

(Footnotes omitted.)

Having concluded that the classification adopted by

the legislature is not suspect, does not impair fundamen-

tal rights, and is rationally related to a legitimate state

purpose, and therefore satisfies the requirements of

equal protection, we cannot find it unconstitutional as

creating an irrebuttable presumption.

3. Equal Protection Challenge to § 2 of the Act.

Plaintiffs that, in exempting certain i.

—_ _o Lak: yeesbwan of retirement at 70, $2

ee HY protection because it does not

purpose § 1, which is insuring a vigorous j judiciary.

e weakness of the plaintiffs’ position is their vac oer gk to

acknowledge that §2 may be rationally related to a

different legitimate state interest, and constitutional for

that reason. Cf. Vance v. Bradley, supra, 47 U.S.L.W. at

4181; Palmer v. Ticcione, supra, 576 F.2d at 462-463.

Provision of retirement benefits for former public ser-

vants is a legitimate state interest; we doubt that plain-

tiffs would contend otherwise. Section 2 allows two

classes of judges to remain in office long enough to

secure pension rights under Ill. Rev. Stat. ch. 108%

§ 18-124. See note 2, supra. The first consists of judges

in office on the etiactive dei date of the Act, who are allow-

ed to remain in office long e to secure maximum

pension rights. This is a fair and rational treatment for

those who became judges before retirement at 70 was

mandatory."! The second consists of those judges in of-

‘1 We are unpersuaded by plaintiffs’ a that u

continuation in office after a ‘retention election, these ju

should have been placed in the same class with other judges

(Footnote continued on following page)

14 No. 78-1941

fice on June 30, 1973, who would not qualify for

minimum pension rights if retired at age 70; they are

allowed to complete the balance of their current terms

when by doing so they will ot for pension oom

However dubious we may be about the rationality of dis-

tinguishing between judges in office on that date and

those who took = ow game ese oe significance of

the date is not explain y anything before us, we can-

not hold the Act invalid on this basis. Only judges disad-

vantaged by the classification would have s..nding to

complain of it. See, e.g., Warth v. Seldin, 422 U.S. 490,

499-502 (1975), and Schlesinger v. Reservists Committee

to Stop the War, 418 U.S. 208, 221-227 (1974). Neither

any of the named plaintiff judges nor any member of the

class they represent complains that he was not allowed

to serve until he qualified for a minimum pension while

others similarly situated were given that privilege.

Section 2 is a temporary provision that slows the im-

plementation of § 1 to alleviate hardships to individuals.

As the Supreme Court has frequently held, when

suspect classifications or fundamental rights are not in-

volved, legislatures may implement programs ee.

or step by step, enacting laws “that only partially

ameliorate a perceived evil deferring complete

elimination of the evil to future regulations.” City of

New Orleans v. Dukes, 427 U.S. 297, 303-305 (1976);

Katzenbach v. Morgan, 384 U.S. 641, 657 (1966);

Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955).

4. Challenge to §2 of the Act under Illinois Constitution.

Plaintiffs argue that the Act fails to provide “a

prescribed age” for retirement as required by Ill. Const.

art. VI, § 15(a), because § 2 exempts some judges from

the Act. This contention is without merit. The Act does

provide a prescribed age for retirement in § 1. Section

9s suspension of §1 as to certain judges specially

si with to the pension laws does not, in our

11 continued

ho accepted the office with knowledge of retirement laws.

The reliance interest of the exempted odees was a sufficient

reason for the classification.

No. 78-1941 15

opinion, render the Act inconsistent with the Illinois

Constitution, the framers of which were aware of § 2. See

Constitutional Commentary to Ill. Const. art. VI, § 15(a),

Ill. Stat. Ann. at 522-523 (Smith-Hurd). Consequently,

we conclude that the Act does not violate the Illinois

Constitution.

We affirm the district court’s holding that the Act

~~ not violate the plaintiff judges’ constitutional

ri .

The Voters’ Rights

Plaintiff voters argue that the Act violates their rights

under the equal protection clause by denying them the

opportunity to vote for candidates of their choice. They

cite Bullock v. Carter, supra, 405 U.S. at 134, for the

proposition that the state must demonstrate a compell-

ing interest to justify restrictions which have an impact

on voters. We do not read the case so broadly.

In Bullock the Court began its analysis of the Texas

filing fee requirement by observing that “not every

lumitation or incidental burden on the exercise of votin

rights is subject to a stringent standard of review.”

at 143. The oe requirement created a “disparity

in voting power on wealth,” id. at 144, because it

had the effect of denying ballot access to dispropor-

tionately more candidates favored by the less affluent

members of the community. Because the requirement

“falls with unequal weight on voters, as well as can-

didates, according to their economic status,” id. at 144,

the Court applied the strict scrutiny standard of review.

No similar or analogous effect, 1.e., unequal treatment

of candidates or voters identifiable by their economic

status or political preferences, occurs here. Any limita-

tion on voting rights is incidental to a classification not

aimed at voters or elections. The rational relationship

standard is therefore ——— to the claims of the

— voters as well as those of the plaintiff

Juages.

en aR ne Ric nits) st ee

16 No. 78-1941

Illinois State Board of Elections v. Socialist Workers

Party, ..... USS. ....., 47 U.S.L.W. 4197 (Feb. 22, 1979), is

not inconsistent with our conclusion. Although language

in that case, 47 U.S.L.W. at 4200, could be read as

subjecting any classification that limits voters’ choices,

in whatever manner or however incidentally, to a strict

scrutiny standard, we interpret that language as

referring to the situation before the Court in that case

and not as fe pct | sub silentio the statement in

Bullock that “not every limitation or incidental burden

on the exercise of voting rights is subject to a stringent

standard of review.” 405 U.S. at 143. It was consistent

with that statement to apply the strict scrutiny standard

to a classification that “impairs the voters’ ability to

express their political preferences.” 47 U.S.L.W. at 4200.

In both Bullock and Illinois State Board of Elections, the

classification burdened identifiable groups of candidates

or voters, identifiable in one case by their economic

status and in the other by their political preferences.

Our interpretation of Bullock finds support in the

decisions of other courts and in the writing of commen-

tators. Plante v. Gonzales, 575 F.2d 1119 (5th Cir. 1978),

involved a constitutional challenge to Florida’s

“Sunshine Laws,” which require public disclosure of

candidates’ personal financial information, and which,

the court noted, had the effect of precluding persons

from running for office. After analyzing Bullock, Judge

Wisdom, writing for the court, applied the rational

relationship test use the Florida restrictions “do not

limit the stolen of any particular group of voters.” 575

F.2d at 1127.!2 In another case the same court concluded

that strict scrutiny i only when “the effect of the

restriction was to exclude candidates of an identifiable

— or viewpoint.” Morial v. Judiciary Commission of

tana, 565 F.2d 295, 301-302 (5th Cir. 1977), cert.

denied, 435 U.S. 1013 (1978). The Second Circuit

rejected the contention under consideration when it held

2 The se notes that oan . ee Tieetiee have

agreed that ulrements for officeholding “n bear

or. a _ valalian nship to state interests.” 575 F.2d at

n.10.

ED lt A alice a 7 oe a

No. 78-1941 17

that no substantial federal Cee was presented in

Rubino v. Ghezzi, supra, 512 F.2d 431. Accord, Manson v.

Edwards, 482 F.2d 1076, 1077-1078 (6th Cir. 1973), and

Blessman v. Markworth, 359 F.Supp. 1, 7 (N.D. Ill. 1973)

(eres judge el). See Deve in the Law—

lections, 88 Harv. L. Rev. 1111, 1218 (1975); L. Tribe,

American Constitutional Law, supra, § 13-19 at 775-777.

We therefore affirm the district court’s holding that

the Act does not infringe the rights of the plaintiff

voters.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

_—

UNITED STATES COURT OF APPEALS

For Tue Sevents Circuit

Chicago, Illinois 60604

April 24, 1979

Hon. Pumir W: Tone, Circuit Judge

Hon. Donatp P. Lay, Circuit Judge*

Hon. Wruuiam J. Baver, Circuit Judge

RAYMOND E. TRAFELET, et al.,

Plaintiffs-A ppellants,

No. 78-1941 vs.

JAMES R. THOMPSON, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Tlinois,

Eastern Division.

No. 78-C-1036

Prentice H. MarsHa.u, Judge.

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing in banc filed in the above-entitled

cause by plaintiffs-appellants, no judge in active service

has requested a vote thereon, and all of the judges on

the original panel have voted to deny a rehearing. Ac-

cordingly,

IT IS ORDERED that the aforesaid petition for re-

hearing be, and the same is hereby, DENIED.

*The Honorable Donald P. Lay, Circuit Judge of the

United States Court of Appeals for the Eighth Circuit,

is sitting by designation.