# Petition — Raymond E. Trafelet v. James R. Thompson, Governor of Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0385%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 906 ## Text - 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0385%3A1. Public record. Not legal advice.