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

MICHAEL RODAK. JR. CLERK

—

In the

Supreme Court of the Anited States

OctroseR TrerRM, 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. LAVELLE, as Vice

Chairman and Member, and JOHN J. LANIGAN, J. 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 Illinois; 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.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

120 South La Salle Street

Chicago, Illinois 60603

312/726-2122

Attorneys for Petitioner

Of Counsel:

* GOTTLIEB and SCHWARTZ

DAVID GOLDBERGER

ROGER BALDWIN FOUNDATION

AMERICAN CIVIL LIBERTIES UNION

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INDEX

PAGE

Opinion of the United States Court of Appeals for

the Seventh Circuit «0.0... (Appended to Petition)

Order Denying Petition for Rehearing

BR TE: ccstrietiiidieacitinimenidiitaly (Appended to Petition)

Judgment of the United States Court of Appeals for

Ce TI SIGIR iiihiniinerettidintinieinninminnnn la

Findings of Fact, Conclusions of Law, Final Judgment

entered in the District Court for the Northern

SIE TUE > TIIIIIIIIN isis snidiescacnibiinuntasheniesduaduniginanieabihioscadinediinns 2a

Tllinois Statute and Constitutional Provisions

Involved

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

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

as amended by Public Act 78-805, $1, effective

RS i: INI <actiesenncinscineivinsvasiiainabntestnctapsiinaies 27a

The Illinois Constitution of 1970, Article V1 ........ 28a

Count I of Second Amended Complaint ..................000 32a

= ig —

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

Opinion by Judge Tone

UNITED STATES COURT OF APPEALS

For the Seventh Cireuit

Chicago, [Illinois 60604

March 16, 1979.

Before

Hon. Puiuie W. Tone, Circuit Judge

Hon. Donatp P. Lay, Circuit Judge*

Hon. Wituiam J. Bauer, Circwit Judge

RAYMOND E. TRAFELET, DAVID A. CANEL,

ARCHIBALD J. CAREY, JR., and BENJAMIN

NELSON, individually and on behalf of all others

similarly situated, et al.,

Plaintiffs-A ppellants,

vs.

No. 78-1941

JAMES R. THOMPSON, as Governor of Illinois, et al.,

: Defendants-Appellees, and

ALLEN HARTMAN, et al,

Intervening Defendants-Appellees.

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

United States Court of Appeals for the Eighth Circuit,

is sitting by designation.

cia.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78-C-1036

Prentice H. Marsnary, Judge

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Northern District of Dlinois, Eastern Division, and was

argued by counsel.

On consideration whereof, it is ordered and adjudged

by this court that the judgment of the said District Court

in this cause appealed from be, and the same is hereby,

AFFIKMED, with costs, in accordance with the opinion

of this court filed this date.

In THE

UNITED STATES DISTRICT COURT

For Tse Nortuern District or Inurmors

Eastern Drviston

RAYMOND E. TRAFELET, et al.,

Plaintiffs,

v.

JAMES R. THOMPSON, et al.,

Defendants.

No. 78 C 1036

FINDINGS OF FACT, CONCLUSIONS

OF LAW, AND FINAL JUDGMENT

INTRODUCTION

In this civil rights action brought pursuant to 42 U.S.C.

§ 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343

(3), two classes of plaintiffs, one represented by four

judges of the Circuit Court of Cook County, Illinois, and

another represented by three Illinois voters resident and

registered in Cook County, Illinois, challenge the consti-

titional validity of an Act of the Illinois General Assem-

bly, entitled ‘‘An Act relating to the compulsory retire-

aw 2g,

ment of judges’’ (sometimes hereinafter ‘‘the Act’’),

which mandates the retirement of Illinois judges at age

70. Plaintiffs’ principal contention is that the Act vio-

lates the equal protection clause of the Fourteenth Amend-

ment to the United States Constitution. The Act provides:

**§ 1. 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 immediately following the attainment of age

70 of such judge. Such judge shall conclude all matters

pending before him unless the Supreme Court makes

other provisions for the disposition of such matters.

‘*§ 2. The Provisions of Section 1 of this Act are

suspended, however, with respect to any judge in

office on the effective date of this Act. Such judge

may continue to serve until the occurrence of one of

the 3 following dates whichever occurs last: (1) Jan-

uary 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 can-

not fulfill the minimum eligibility requirements un-

der the Judges Retirement System of Illinois, Arti-

cle 18 of the Illinois Pension Code, on the day of

his becoming age 70, but who can do so by remain-

ing in office after age 70 for the balance of his cur-

rent term.

‘*Upon reaching the date provided 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 occur-

ring immediately after such retirement date except

that such judge shall complete all matters pending

before him unless the Supreme Court makes other

provisions for the disposition of such matter.’’ III.

Rev. Stat., ch. 37, §§ 23.71, 23.72 (1977).

wean:

On May 22, 1978, we determined that the action be

maintened as a class action pursuant to Rule 23(b) (2),

both as to a class represented by the plaintiff judges, and

as to a class represented by the plaintiff voters.

The judge plaintiffs have been certified to represent

and to bring this action on behalf of a class composed of

all judges of the Supreme, Appellate and Circuit Courts

of Illinois who are or will be subject to mandatory re-

tirement under Illinois law at age 70 before the end of

their certified terms of office or who will be deprived of

the right to run for retention of their office because they

have attained or will attain the age of 70.

The voter plaintiffs Fitzpatrick, Wlliams and Lewis

have been certified to represent and to bring this action

on behalf of a class composed of all registered voters of

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

tunity to vote for the judicial candidates of their choice

because the judicial candidates of their choice are or will

be subject to mandatory retirement under Illinois law at

age 70.

The class of judge plaintiffs contend that the Act vio-

lates the equal protection clause of the Fourteenth Amend-

ment on the following grounds:

1. There is no rational relation between age 70 and

ability to discharge the duties of a judge.

2. There is no rational basis for the distinction be-

tween judges over 70, who are mandatorily retired,

without a hearing as to their ability to serve, and

judges under 70, who can be removed only after

notice and hearing before the Illinois Courts Com-

mission.

3. There is no rational basis for the distinction be-

tween judges, who are mandatorily retired at age

70, and other publicly-selected state officials, who

are subject to no mandatory retirement age.

4. There is no rational basis for the various provi-

sions of Section 2 of the Act which suspend the

—_—

provisions of Section 1 of the Act under the con-

ditions, and with the effects, stated in Section 2

of the Act. .

The class of voter plaintiffs contend that the Act vio-

lates their rights under the First and Fourteenth Amend-

ments on the following grounds:

1. They are unlawfully denied the right to vote for

judge candidates of their choice, insofar as. they

desire to vote for one or more of the members

of the class of judge plaintiffs who are over age

70.

2. Their previous votes for members of the class of

judge plaintiffs have been diluted insofar as mem-

bers of the class of judge plaintiffs, who were pre-

viously voted for by members of the class of voters,

are to be retired at age 70 prior to the expiration

of the full term of the position for which mem-

bers of the class of judge plaintiffs were last re-

tained in office.

For the reasons hereinafter stated we hold that nei-

ther class of plaintiffs has shown any federal constitu-

tional infirmity with respect to the Act.

The class of judge plaintiffs assert two additional

claims which arise wholly under Illinois law, of which we

have pendent jurisdiction.

The first pendent claim relates to Public Act 80-1057,

enacted in 1977 by the Illinois General Assembly, which

amended the Act by providing:

“Any Supreme, Appellate or Circuit Judge who has

been elected to that office and who seeks to be re-

tained in that office under subsection (d) of Section

12 of Article VI of the Constitution shall file a dec-

laration of candidacy to succeed himself in the office

of the Secretary of State on or before the first Mon-

day in December before the general election preced-

ing the expiration of his term of office. The Secre-

ollie

tary of State, not less than 63 days before the elec-

tion, shall certify the Judge’s candidacy to the prop-

er election officials. The names of Judges seeking re-

tention shall be submitted to the electors, separately

and without party designation, on the sole question

whether each Judge shall be retained in office for an-

other term. The retention elections shall be conducted

at general elections in the appropriate Judicial Dis-

trict, for Supreme and Appellate Judges, and in the

circuit for Cireuit Judges. The affirmative vote of

three-fifths of the electors voting on the question shall

elect the Judge to the office for a term commencing

on the first Monday in December following his elec-

tion.’’ Ill. Rev. Stat., ch. 46, 4 7A-1 (Supp. 1977).

Plaintiffs claim that Public Act 80-1057 violates Article

VI, Section 12(d) of the Illinois Constitution, which pro-

vides in pertinent part:

**Not less than six months before the general elec-

tion preceding the expiration of his term of office, a

Supreme, Appellate or Circuit Judge who has been

elected to that office may file in the office of the Sec-

retary of State a declaration of candidacy to succeed

himself.’’

Plaintiffs’ second pendent claim is that the Act vio-

lates the first sentence of Article VI, Section 15(a) of

the Illinois Constitution, which provides: “The General

Assembly may provide by law for the retirement of Judges

and Associate Judges at a prescribed age.’’ Plaintiffs

claim that the Act is unconstitutional under Illinois law, in

that because of Section 2 and the 1977 Amendment it does

not establish a single retirement age for Illinois judges

but, rather establishes several ages.

For the reasons hereinafter stated we hold that these

two contentions under Illinois law are without merit.

The action was brought on March 20, 1978. Plaintiffs

promptly sought a preliminary injunction. At our sug-

gestion the parties, through the commendable diligence

— ee

and cooperation of their counsel, readied themselves for

trial on the merits which was held May 22-30. Guided by

the recent decision of the Court of Appeals for this Cir-

cuit in Gault v. Garrison, 569 F.2d 993 and the Supreme

Court’s decision in Massachusetts Board of Retirement

v. Murgia, 427 U.S. 307, we decided the case orally on

May 30, 1978. At that time we invited defendants to sub-

mit supplemental findings and conclusions, if they chose

to do so, by June 7 which they did. We have now had the

opportunity to consider defendants’ proposed findings

and conclusions and plaintiffs’ objections in light of our

decision of May 30, 1978. We now make our formal find-

ings and conclusions pursuant to Rule 52(a), F.R.Civ.P.

FINDINGS OF FACT

1. Plaintiff David A. Canel is a Judge of the Circuit

Court of Cook County, Tlinois. (Pl.Ex. B; Tr. 49). Plain-

tiff Canel was born June 19, 1906. (Tr. 86). Plaintiff

Canel was first elected a judge in 1959. (Tr. 49). Plain-

tiff Canel was most recently retained as a judge in the

judicial retention election held in 1972. (Tr. 49). The term

of the position for which plaintiff Canel was most recent-

ly retained expires on the first Monday in December, 1978.

(P1.Ex. B). Between 1959 and 1975, plaintiff Canel had

not had a comprehensive physical examination. (Tr. 82).

Plaintiff Canel’s most recent comprehensive physical ex-

amination was in early 1976. (Tr. 81). Plaintiff Canel has

never had a psychiatric or psychological examination.

(Tr. 82).

2. Plaintiff Archibald J. Carey, Jr., is a Judge of the

Cireuit Court of Cook County, Illinois. (Pl.Ex. C; Tr.

103). Plaintiff Carey was born February 29, 1908. (Tr.

103). Plaintiff Carey was first elected a judge in 1966.

(Tr. 103). Plaintiff Carey was most recently retained as

a judge in the judicial retention election held in 1976. (Tr.

103). The term of the position for which plaintiff Carey

was most recently retained expires on the first Monday

in December, 1982. (PI.Ex. C). Plaintiff Carey suffered

a stroke on May 31, 1967, which caused him to be absent

ee

from the bench until January 3, 1968. (Tr. 108). Plain-

tiff Carey has never had a comprehensive physical exami-

nation since 1976. (Tr. 118). Plaintiff Carey has never

had a psychiatric or psychological examination. (Tr. 118).

3. Plaintiff Benjamin Nelson is a Judge of the Cir-

cuit Court of Cook County, Illinois. (Pl.Ex. F; Tr. 130).

Plaintiff Nelson was born March 6, 1904. (Comp., | 13(c)).

Plaintiff Nelson was first elected a judge in 1960. (Tr.

130). Plaintiff Nelson was most recently retained as a

judge in the judicial retention election held in 1976. (Tr.

130). The term of the position for which plaintiff Nelson

was most recently retained expires on the first Monday

in December, 1982. (Pl.Ex. F). Plaintiff Nelson most re-

cently had a comprehensive physical examination in March

of 1978. (Tr. 138). Prior to that time, the only compre-

hensive physical examination of plaintiff Nelson, since

he has been a judge, was in 1970. (Tr. 138). Plaintiff Nel-

son has never had a psychiatric or psychological examina-

tion. (Tr. 139).

4. Plaintiff Raymond E. Trafelet is a Judge of the

Cireuit Court of Cook County, Illinois. (PLEx. A; Tr.

144). Plaintiff Trafelet was born June 13, 1907. (Tr. 144-

145). Plaintiff Trafelet was first elected a judge in 1968.

(Tr. 144). Plaintiff Trafelet was most recently retained

as a judge in the judicial retention election held in 1976.

(Tr. 145). The term of the position for which plaintiff

Trafelet was most recently retained expires on the first

Monday in December, 1982. (P1.Ex. A). Since he has been

on the bench, plaintiff Trafelet has had physical exami-

nations in 1969 and 1972. (Tr. 158-159). Plaintiff Trafelet

has never had a psychiatric or psychological examination.

(Tr. 159).

5. Each judge plaintiff is a vigorous, hardworking,

productive judge.

6. Each judge plaintiff was aware of the provisions

* ig — yer > % §§ ample 23.72 (1977), when each

ast sought retention for the position each jud lain-

tiff now holds. (Tr. 68, 116, 137, 156). ipa

=

7. Plaintiff Melvin B. Lewis, a duly registered voter,

voted for plaintiff Raymond E. Trafelet for the office of

Judge of the Circuit Court of Cook County, Tlinois, in the

1976 election for judicial retention. He desires to vote for

plaintiff Trafelet’s retention in the future and for elec-

tion and retention of some other judges in the class of

plaintiff judges. (Comp., | 14(a)).

8. Plaintiff Peter Fitzpatrick, a duly registered voter,

voted for plaintiff David A. Canel for the office of Judge

of the Circuit Court of Cook County, Illinois, in the 1972

election for judicial retention. He desires to vote for

plaintiff Canel’s retention in the election to be held in

November of 1978, and for the election and retention in

future elections of other judges in the class of plaintiff

judges. (Comp., ff 14(b)).

9. Plaintiff Albert W. Williams, a duly registered

voter, voted for plaintiff Archibald J. Carey, Jr. for the

office of Judge of the Cirenit Court of Cook County, Tli-

nois, in the 1976 election for judicial retention. He desires

to vote for plaintiff Carey’s retention in the future and

for election and retention in future elections of other

judges in the class of plaintiff judges. (Comp., J 14(c)).

10. Defendant James R. Thompson is the Governor

of the State of Tllinois. (Comp., 6).

11. Defendant State Board of Elections of the State

of Tllinois was created by the General Assembly and

serves, pursuant to Ill. Rev. Stat., ch. 46, §1A-1, eé seq.,

to perform duties assigned to it by law. Defendants Mi-

chael Lavelle, as Chairman and member, and Don Adams

and Franklin Lunding, Jr., as members, are presently

the appointed and acting members of the State Board of

Elections of the State of Illinois and are vested by law

with the administration of the duties of the Board. (Comp.,

7 7).

12. Defendant Michael J. Bakalis is Comptroller of

the State of Illinois. (Comp., {| 8).

=

13. Defendant Alan J. Dixon is the Secretary of State

of Illinois. (Comp., J 9).

14. Defendant Roy O. Gulley is the Director of the

Administrative Office of the Illinois Courts. (Comp., J 10).

15. Under the terms of the Act, each named plaintiff

judge will be mandatorily retired on the first Monday in

December, 1978. It is conceded by all parties that the

above-named state official defendants will take various

actions, in accordance with the statutes and Illinois con-

stitutional provisions governing their duties, to enforce

the provisions of the Act, unless they are enjoined by or-

der of this court.

16. Defendants John J. McDonnell, Lehman Krause,

James Edward Dull and W. R. Todd and intervening de-

fendants Allen Hartman, Brian B. Duff, David J. Shields,

James A Zafiratos, Michael P. Toomin, Marvin Rutten-

berg, and James J. Heyda are each candidates nominated

for judicial offices in Illinois which defendants assert will

become vacant in December, 1978 by reason of the Act.

(Comp., 7 10A).

17. Under the [llinois Constitution of 1870, before

1964, a great number of judicial offices existed in Illinois

below the level of the Illinois Supreme Court and the Tlli-

nois Appellate Court. Under various provisions of that

Constitution, there were circuit courts, city and village

courts, municipal courts, county courts, probate courts,

and in Cook County, the superior court and the criminal

court, as well as justices of the peace courts which were

authorized pursuant to various statutes and municipal

no nae i Til. Const. 1870, Art. VI. (Def.Ex. 2, CH3-

).

18. Prior to 1964, all judicial officers in Illinois were

required, at the end of their elected terms, to stand for

re-election. Each sitting judge was required, at the end

of his elected term, either to step down, or stand for re-

election in a partisan contest. Thus, the entire judiciary

was the periodic subject of partisan political contest. Il.

Const, 1870, Art. VI. (Def.Ex. 2, CH3-CH7).

—lla —

19. Under this Constitutional scheme, between 1870

and 1964, there was no provision for mandatory retire-

ment of judges in Illinois. There were only two methods

of removing any judge from the bench for any reason,

including disability for age. The first method was pur-

suant to Article VI, Section 30 of the 1870 Illinois Con-

stitution:

‘The general assembly may, for cause entered on

the journals, upon due notice and opportunity of de-

fense, remove from office any judge, upon concur-

rence of three-fourths of all the members elected, of

each house.’’ Il. Const. 1870, Art. VI, § 30. (Def.Ex.

2, CH 6).

The second method was through an impeachment pro-

ceeding pursuant to Article V, Section 15, grounds for

impeachment being limited to ‘‘any misdemeanor in office.””

An impeachment was required to be voted by a major-

ity of the House of Representatives and tried before the

Senate. A two-thirds vote was necessary for conviction.

Til. Const. 1870, Art. V, § 15.

20. On November 6, 1962, the People of the State of

Illinois, through the Constitutional amendatory process,

radically changed the structure of the Illinois judiciary

and method of selection and retention of judges in Illinois.

No longer were judges required to run, every four or six

years, for re-election to office in a partisan political cam-

paign. Instead, the device of initial judicial election and

then retention, unique to judicial offices in Illinois, was

adopted :

“Not less than six months prior to the general

election next preceding the expiration of his term

of office, any judge previously elected may file in

the office of the Secretary of State a declaration

of candidacy to succeed himself, and the Secretary

of State, not less than 61 days prior to the election

shall certify such candidacy to the proper election

officials, At the election the name of each judge who

— 12a —

has filed such a declaration shall be submitted to the

voters, on a special judicial ballot without party

designation, on the sole question whether he shall

be retained in office for another term. The elections

shall be conducted in the appropriate judicial districts,

circuits, counties and units. The affirmative votes

of a majority of the voters on the question shall

elect him to the office for another term commencing

the first Monday in December following the election.

Any judge who does not file a declaration within

the time herein specified, or, having filed, fails of

re-election, shall vacate his office at the expiration

of his term, whether or not his successor, who shall

be selected for a full term pursuant to Section 10 of

this Article, shall yet have qualified.” Ill. Const. 1870,

Art. VI, § 11, amended November 6, 1962, effective

January 1, 1964. (Def.Ex. 2, CH9).

21. The purpose of the provision concerning the new

procedure of judicial retention was as follows:

“1. SECURITY OF TENURE IN OFFICE ASSUR-

ING INDEPENDENCE OF JUDGES

“Judges of all courts will be nominated and elected

in the first instance as under the present Constitu-

tion, but once elected, each judge will be entitled at

the expiration of his term to run for retention in

office solely on his own record, without opposition

and without party designation. All judges in office

on January 1, 1963 will have this right. Thus a judge

is freed from dependence upon partisan polities. This

security will be conducive to impartial and even-

handed justice and will encourage able lawyers to

give up their law practice to run for the bench,

thereby assuring good candidates for judicial office.

Moreover, the voters will have a greater voice in

the selection of judges because of the requirement

that they be voted on at general elections, when

the largest number of people vote, rather than at

special judicial elections.” Id., § 1. (Def.Ex, 2, CH12).

— 13a —

22. The amendments to the Judicial Article of the

Illinois Constitution which were adopted in 1962 also

provided mechanisms for removal of judges which were

less cumbersome than the prior devices of impeachment

or recall by the General Assembly. Section 18 of the

Judicial Article approved by the voters of Illinois in

1962 provided:

“Notwithstanding the provisions of this Article

relating to terms of office, the General Assembly

may provide by law for the retirement of judges

automatically at a prescribed age; and, subject to

rules of procedure to be established by the Supreme

Court and after notice and hearing, any judge may

be retired for disability or suspended without pay

or removed for cause by a commission composed

of one judge of the Supreme Court selected by that

court, two judges of the Appellate Court selected

by that court, and two circuit judges selected by the

Supreme Court. Such commission shall be convened

by the Chief Justice upon order of the Supreme Court

or at the request of the Senate.

“Any retired judge may, with his consent, be as-

signed by the Supreme Court to judicial service, and

while so serving shall receive the compensation ap-

plicable to such service in lieu of retirement bene-

fits, if any.” Id., 4 18. (Def.Ex. 2, CH9-CH10).

23. The provision authorizing mandatory retirement

of judges was linked to the device of judicial retention.

Without mandatory retirement, it was perceived by the

drafters of the 1962 amendments to the Judicial Article

of the Illinois Constitution of 1870 that the result of the

device of judicial retention would be a judiciary in Illi-

nois increasingly composed of elderly judges. The pur-

poses of authorizing mandatory retirement of Illinois

judges was to reduce seniority on the bench by provid-

ing a time when judges would ultimately leave the bench

and make way for others to assume the bench. (Tr. 760,

773-774).

—

24. The effective date of the new Judicial Article of

the Illinois Constitution of 1870, which was ratified by

the voters of Illinois on November 6, 1962, was January

1, 1964. (Def.Ex. 2, CH10).

25. In 1965, the Illinois General Assembly enacted

“An Act relating to the compulsory retirement of judges,”

(“The Act”), effective July 20, 1965, which provided:

Ҥ 1. A judge is automatically retired on the first Mon-

day of December next after the general election at

which members of the General Assembly are elected

immediately following the attainment of age 70 of

such judge. Such judge shall conclude all matters

pending before him unless the Supreme Court makes

other provisions for the disposition of such matters.

Ҥ 2. The provisions of Section 1 of this Act are sus-

pended, however, with respect to any judge in office

on the effective date of this Act. 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 com-

pletes 18 years of judicial service in courts of rec-

ord 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.

“Upon reaching the date provided in this Section 2,

whichever is appropriate, such judge is retired on the

first Monday in December next after the general elec-

tion for members of the General Assembly occurring

immediately after such retirement date except that

such judge shall complete all matters pending be-

fore him unless the Supreme Court makes other pro-

visions for the disposition of such matters.”

The provisions of the Act now appear in IIl. Rev. Stat.,

ch. 37, §§ 23.71, 23.72 (1977).

26. The only stated and recorded purpose of the Act

was:

“. .. to insure a more vigorous judiciary to which the

public is entitled.” (Def.Ex. 3, H10; Tr. 757-759).

— 15a —

27. The obvious purpose of the provisions of Section

2 of the Act, which suspended the effectiveness of Sec-

tion 1 of the Act, was to adapt the Act to incumbent mem-

bers of the Illinois judiciary who, on the effective date

of the Act, had assumed the bench prior to the consti-

tutional amendments of 1962 which authorized mandatory

retirement of Illinois judges. (Ill. Const. 1870, Art. VI;

Tr. 724, 730-731). Reading the Act in pari materia with

the Illinois Pension Code as it pertained to judges in

Tilinois in 1965, the purpose of the first date, January

1, 1976, was to insure that judges in office on January

1, 1964 (the effective date of the 1962 Judicial Article)

would earn a minimum pension based on 12 years’ serv-

ice. The purpose of the provision allowing for a total of

18 years of judicial service was to allow those judges to

earn a maximum judicial pension. See, Tl. Rev. Stat.,

ch. 10814, § 18-124 (1977).

28. Judging is largely an intellectual function which

must be performed in a fair and even-handed way. A

vigorous judiciary is one with experience; one which

stays abreast of changes in the law: which can listen

and read attentively; assimilate complex facts; reach find-

ings and conclusions on the basis of those facts; apply

the law to those facts to arrive at judgments: be fair and

open-minded, and yet decisive. A vigorous judiciary must

also have the physical ability to put in a full day of judi-

cial work. In Illinois outside of Cook County, this can

require a Circuit Judge to do substantial amounts of

travelling on a day-to-day basis in the discharge of the

duties of his office. (Tr. 180-183; 225-229; 267-269; 325-

335; 777-779; Def.Ex. 5).

29. There is substantial agreement among experts

in psychology, based upon scientific research which has

been published on a continuing basis since the 1940’s, that

the following phenomena with respect to human intel-

lectual function are observed to he associated with age:

a. Language skills and the accumulation of con-

crete knowledge tend to increase through the fifth

a

decade of life, for active, intelligent, competent

working people, after which time these functions

tend to reach a plateau and tend not to decrease

until just prior to death.

b. Two core abilities of human intellectual function,

intellectual speed and intellectual flexibility, tend

to decrease or slow down after the fourth decade —

of life, with the decline in these core abilities be-

coming increasingly rapid after the sixth decade

of life.

c.. The efficiency of the retrieval of information from

memory, particularly the retrieval of relatively

new information, tends to show a significant de-

crement in the sixth and seventh decades of life.

(Tr. 843-845; 853-919; 975-977). The terms “after the

sixth decade of life” and “between the sixth and seventh

decades of life” refer to the ages of 65 to 75. (Tr. 846),

30. There is substantial agreement among experts

in psychology, based upon scientific research which has

been published on a continuing basis since the 1940's,

that in the period of human life beyond the sixth decade,

the ability to attend to complex conceptual and factual

matters, and the ability to draw fine distinctions, tend to

deteriorate due to increasing distractability, decreasing

ability to focus attention, increasing difficulty in dealing

with unfamiliar information, and increasing difficulty in

processing information rapidly. (Tr. 845; 853-919).

31. There is sharp debate among experts in psychology

as to whether these phenomena which have been observed

to be associated with age are caused by age alone, or by

some other combination of factors. (Tr. 846-847; 978).

There is, however, relatively little debate among experts

in psychology with respect to the truth and validity of

the observations stated in paragraphs 29 and 30, above,

and the fact of the association of these phenomena with

age, (Tr, 846-847; 978),

— 17a —

32. The observations described in paragraphs 29 and

30 above, are highly relevant to the judicial funetion and

a vigorous judiciary, since they involve the essences of

the decisional processes of a judge. (Tr. 180-183; 225-

229; 267-269 ; 823-830).

33. A study published in 1964 by plaintiffs’ expert

Dr. Neugarten, which culminated ten years of research,

showed a deterioration of seven personality factors when

subjects in the age group of 63 to 71 were compared with

subjects in the age group of 50 to 58. A comparison of

those groups showed that the older group was more dog-

matic, relied to a greater extent upon unsupported views,

tended to express themselves more idiomatically, was less

concerned with causality, was more self-indulgent, was

more concerned with and oriented to the past than the

future, and was less coneerned with learning. (Tr. 443.

460). These personality factors are critical to the judi-

cial function and a vigorous judiciary, sinee the deterio-

ration noted would adverselv affect qualities of per-

sonality essential to fair and even-handed discharge of

the judicial function. (Tr. 180-183; 225-229; 267-269; 443-

460).

34. During the course of its deliberations in 1963 and

1965 on the subject of a mandatory retirement age for

Tllinois judges, the Tllinois General Assembly considered

alternatives between the ages of 65 and 75. At that time,

age 65 was the usual age for retirement for most voca-

tions. The age of 70 was chosen for the retirement of Thli-

nois judges for two reasons: first, judging is more an

intellectual than a physical endeavor, and second, to se-

cure the benefits to the State of Tllinois of an additional

five years’ experience and service from its judges. (Tr.

726-728; 753-755).

35. The Sixth Tllinois Constitutional Convention,. in

1970, was aware of the existence of the Act, and there-

after proposed for adoption, among other provisions,

sections 15(a) of Article VI of the Illinois Constitu-

tion of 1970, which provides in part that: “The General

_~_

Assembly may provide by law for the retirement of

Judges and Associate Judges at a prescribed age.” ‘That

provision was ratified with the Illinois Constitution of

1970. (Def.Ex. 4, p. 2; Ill. Const. 1970, Art. IV, § 15(a)).

36. In 1973, the Illinois General Assembly enacted

the following addition as an amendment to the Act:

“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 require-

ments under the Judges Retirement System of IIli-

nois, Article 18 of the Illinois Pension Code, on the

day of his becoming age 70, but who can do so by

remaining in office after age 70 for the balance of his

current term.”

(Def.Ex. 3, H38-H56). That provision is now codified in

Tl. Rev. Stat., ch. 37, § 23.72 (1977). The purpose of

that provision was to allow certain Illinois judges to

qualify for a minimum pension. (Tr. 733-736).

37. Of the various provisions in section 2 of the Act,

which suspend the provisions of section 1 of the Act, the

only provision which continues to have any effect is the

provision which permits a judge in office on July 20, 1965,

to continue to service until “. . . 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.” After December,

1978, that provision will apply to three Illinois judges.

(Tr. 321-322).

38. The Illinois Constitution of 1970 carried forward

the device of judicial retention, which is still unique to

judges in Illinois. (Ill. Const. 1970, Art. VI, § 12(d)).

39. Illinois judges are, and since 1964 have been,

unique among publicly-selected officials of state govern-

ment in Illinois by virtue of the nature of their duties,

and their tenure in office afforded by the device of judi-

cial retention. (Ill. Const. 1870, Art. IV, V, VI; Til. Const.

1970, Art. IV, V, VI).

— 19a —

40. No other publicly-selected officials of state govern-

ment in Illinois are subject to a mandatory retirement

age. See, Ill. Rev. Stat., ch. 46, § 25-2 (1977).

41. Between January 1, 1964 and July 1, 1971, Illinois

judges not mandatorily retired in accordance with the

Act were subject to the following provision of the IIli-

nois Constitution:

“ . . [S]ubject to rules of procedure to be estab-

lished by the Supreme Court and after notice and

hearing, any judge may be retired for disability or

suspended without pay or removed for cause by a

commission composed of one judge of the Supreme

Court selected by that court, two judges of the Ap-

pellate Court selected by that court, and two circuit

judges selected by the Supreme Court. Such com-

mission shall be convened by the Chief Justice upon

order of the Supreme Court or at the request of the

Senate.” Ill. Const. 1870, Art. VI, § 18, amended

November 6, 1962, effective January 1, 1964.

42. Since July 1, 1971, Illinois judges not mandatorily

retired in accordance with the Act have been subject to

the following provisions of the Illinois Constitution:

“(b) A Judicial Inquiry Board is created. The Su-

preme Court shall select two Circuit Judges as mem-

bers and the Governor shall appoint four persons

who are not lawyers and three lawyers as members

of the Board. No more than two of the lawyers and

two of the non-lawyers appointed by the Governor

shall be members of the same political party. The

terms of the Board members shall be four years. A

vacancy on the Board shall be filled for a full term

in the manner the original appointment was made.

No member may serve on the Board more than

eight years.

“(c) The Board shall be convened permanently,

with authority to conduct investigations, receive or

initiate complaints concerning a Judge or Associate

—

Judge, and file complaints with the Courts Commis-

sion. The Board shall not file a complaint unless five

members believe that a reasonable basis exists (1)

to charge the Judge or Associate Judge with willful

misconduct in office, persistent failure to perform

his duties, or other conduct that is prejudicial to the

administration of justice or that brings the judicial

office into disrepute, or (2) to charge that the Judge

or Associate Judge is physically or mentally unable

to perform his duties. All proceedings of the Board

shall be confidential except the filing of a complaint

with the Courts Commission. The Board shall pros-

ecute the complaint.

“(d) The Board shall adopt rules governing its

procedures. It shall have subpoena power and au-

thority to appoint and direct its staff. Members of

the Board who are not Judges shall receive per diem

compensation and necessary expenses; members who

are Judges shall receive necessary expenses only.

The General Assembly by law shall appropriate funds

for the operation of the Board.

“(e) A Courts Commission is created consisting of

one Supreme Court Judge selected by that Court,

who shall be its chairman, two Appellate Court judges

selected by that Court, and two Circuit Judges se-

lected by the Supreme Court. The Commission shall

be convened permanently to hear complaints filed by

the Judicial Inquiry Board. The Commission shall

have authority after notice and public hearing, (1)

to remove from office, suspend without pay, censure

or reprimand a Judge or Associate Judge for willful

misconduct in office, persistent failure to perform

his duties, or other conduct that is prejudicial to the

administration of justice or that brings the judicial

office into disrepute, or (2) to suspend, with or with-

out pay, or retire a Judge or Associate Judge who

is physically or mentally unable to perform his

duties.

— 2la —

“(f) The concurrence of three members of the Com-

mission shall be necessary for a decision. The deci-

sion of the Commission shall be final.

“(¢) The Commission shall adopt rules governing

its procedures and shall have power to issue sub-

poenas. The General Assembly shall provide by law

for the expenses of the Commission.” Ill. Const. 1970,

Art. VI, § 15(b)-(g).

CONCLUSIONS OF LAW

1. This Court has jurisdiction of the parties and the

subject matter of this action. 28 U.S.C. §§ 1331, 13438(3),

1343(4), 42 U.S.C. § 1983. This is an appropriate action

for declaratory relief. 29 U.S.C. §§ 2201, 2202. This Court

has pendent jurisdiction of the claims presented under

Tilinois law. Unite? Mine Workers vy. Gibbs, 383 U.S. 715

(1966).

2. The class of plaintiff Tlinois judges hold office by

virtue of a privilege granted by the State of Illinois.

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

cert. denied, 409 U.S. 1037, reh. denied, 410 U.S. 947

(1973).

3. The class of plaintiff Illinois judges have no funda-

mental right to government employment. Massachusetts

Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976).

4. Age does not constitute a suspect class for pur-

poses of the equal protection clause of the Fourteenth

Amendment to the United States Constitution. Murgia,

supra, at 313-314; Gawlt v. Garrison, 569 F.2d 993 (7th

Cir. 1978). ,

5. Whether the Act violates the rights of the class of

plaintiff Illinois judges under the equal protection clause

of the Fourteenth Amendment to the United States Con-

stitution by mandating retirement of Illinois judges at

age 70 is to be determined by whether the retirement of

judges at age 70 is rationally related to the objective of

the Act, “. .. to insure a more vigorous judiciary to which

=

the public is entitled,” and whether the Act rationally

furthers that purpose. Murgia, supra, at 314; Gault,

supra, at 995.

6. The Act is presumed to be valid. Murgia, supra,

at 314.

7. Lindsley v. National Carbonic Gas Co., 220 US.

78-79 (1911), sets forth the following rules which govern

the assessment of the constitutionality of the Act:

“1. The equal protection clause of the 14th Amend-

ment does not take from the State the power to clas-

sify in the adoption of police laws, but admits the

exercise of a wide scope of discretion in that regard,

and avoids what is done only when it is without any

reasonable basis and therefore is purely arbitrary.

2. A classification having some reasonable basis does

not offend against that clause merely because it is

not made with mathematical nicety or because in

practice it results in some inequality. 3. When the

classification in such a law is called in question, if any

state of facts reasonably can be conceived that would

sustain it, the existence of that state of facts at the

time the law was enacted must be assumed. 4. One

who assails the classification in such a law must carry

the burden of showing that it does not rest upon any

reasonable basis, but is essentially arbitrary.”

Murgia, supra, at 314 n.5; Gawlt supra, at 995.

8. Scientific observations since the 1940’s have shown

an association between age and decline in human intel-

lectual function and personality factors during the sixth

and seventh decades of life, between the ages of 65 and

75. These scientific observations had been published as

of the time the Illinois General Assembly considered and

enacted the Act. There was at that time, and continues

to be, substantial scientific agreement about the fact of

the associations which have been observed. These scienti-

fic observations sustain the retiremert age of 70 for IIli-

nois judges mandated by the Act. Murgia, supra.

— 8a —

9. The equal protection clause of the Fourteenth

Amendment to the United States Constitution does not

require that the Illinois General Assembly have probed

the scientific cause of the observed association between

age and decline in human intellectual function and per-

sonality factors. Lindsley, supra; Murgia, supra.

10. There is debate, since the enactment of the Act,

among scientists as to the cause of the observed associa-

tions between entry into the sixth and seventh decades

of life and the noted decline in human intellectual fune-

tion and personality factors. The fact of such debate is

insufficient basis to invalidate the Act. United States v.

Thorne, 325 A.2d 764, 768 (D.C.App. 1974); United States

v. Brookins, 383 F. Supp. 1212 (D.N.J. 1974).

11. The question raised by this action is not whether

the Act precisely filters out those, and only those, who

are in the factual position which generated the concern

reflected in the Act. Nor is the question whether the Act

filters out a substantial part of the class which caused the

concern of the Illinois General Assembly or whether it

filters out more members of the class than non-members.

The question is whether the Illinois Genera’ Assembly,

its concern having been reasonably aroused by the pos-

sibility of the problem of a non-vigorous judiciary which

it legitimately sought to avoid, could have concluded both

that a particular limitation or qualification would pro-

tect against its occurrence, and that the expense and

other difficulties of individual determinations justified

the inherent imprecision of a prophylactic rule. Wein-

berger v. Salfi, 422 U.S. 749, 776-777 (1975); Murgia,

supra, at 316.

12. Retirement of Illinois judges at age 70 pursuant

to the Act is rationally related to the objective of the

Act, “. . . to insure a more vigorous judiciary to which

the public is entitled,” and rationally furthers that pur-

pose. Murgia, supra, at 314-317; Rubino v. Gheezi, 512 F.2d

431 (2d Cir. 1975), cert. denied, 423 U.S. 891 (1975);

McIlvaine v. Pennsylvania State Police, 309 A.2d 801

_<_

(Pa. 1973), appeal dismissed for want of substantial fed-

eral question, 415 U.S. 986 (1974); Weisbrod v. Lynn,

383 F. Supp. 933 (D.D.C. 1974), aff'd summarily, 420

U.S. 940 (1975); Cannon v. Guste, 423 U.S. 918 (1975),

aff’g No. 74-3211 (May 6, 1975, E.D.La.); Johnson v.

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

533 F.2d 331 (6th Cir. 1976); Klain v. Pennsylvania State

University, 434 F. Supp. 571 (M.D. Pa. 1977); Weiss v.

Walsh, 324 F. Supp. 75 (S.D.N.Y. 1971), aff’d without

opinion, 461 F.2d 846 (2d Cir. 1972), cert. denied, 409 U.S.

1129 (1973); Palmer v. Ticcione, 433 F. Supp. 653 (E.D.

N.Y. 1977); Armstrong v. Howell, 371 F. Supp. 48 (D.

Neb. 1974); Aronstam v. Cashman, 325 A.2d 361 (Vt.

1974); Nelson v. Miller, 480 P.2d 467 (Utah 1971).

13. The class of plaintiff judges have taken office for

terms clearly established by the Illinois General Assembly

and they are properly subject to the conditions imposed

by the state upon the length of their terms. Rubino v.

Ghezzi, 512 F.2d 431, 433 (2d Cir. 1975) ; Gordon v. Leath-

erman, 450 F.2d 562, 565 (5th Cir. 1971).

14. Since Illinois judges hold an office unique among

publicly-selected officials of state government in TIlinois,

the State of Illinois may permissibly provide for manda-

tory retirement of judges while not so providing for other

publicly-selected officials of state government. Tigner

v. Texas, 310 U.S. 141, 147 (1940); Martin-Trigona v.

Underwood, 529 F.2d 33 (7th Cir. 1975); Lefkovits v.

State Board of Elections, 400 F. Supp. 1005 (N.D. II.

1975), aff'd summarily, 424 U.S. 901 (1975).

15. That the State of Illinois affords judges not man-

datorily retired a hearing before the Illinois Courts

Commission prior to removal does not deny the class of

plaintiff judges equal protection of the laws. Cannon v.

Guste, 423 U.S. 918 (1975), aff’g No. 74-3211 (May 6, 1975,

E.D. La.). See, Id., Jurisdictional Statement, and Mo-

tion to Affirm. See also, Hicks v. Miranda, 422 U.S. 332

(1975); Ohio ex rel. Eaton v, Price, 360 U.S. 246 (1959),

— 25a —

16. None of the provisions of Section 2 of the Act or

the amendment of 1977 deny the class of plaintiff judges

equal protection of the laws, since the State of Illinois

may reasonably adapt mandatory judicial retirement to

a situation where some judges who had been elected prior

to any provision for mandatory retirement had substan-

tial interests in completing their terms of office and se-

curing their judicial pensions. City of New Orleans v.

Dukes, 427 U.S. 297, 305 (1976); Sperry and Hutchinson

Co. v. Rhodes, 220 U.S. 502, 505 (1910); Semler v. Oregon

State Board of Dental Examiners, 294 U.S. 608 (1934) ;

Watson v. Maryland, 218 U.S. 173 (1910); Dent v. West

Virginia, 129 U.S. 114 (1889); Stephens v. Dennis, 293

F. Supp. 589 (N.D. Ala. 1968); Wasmuth v. Allen, 252

N.Y.S.2d 65 (1964); Brooks v. State Board of Funeral Di-

rectors and Embalmers, 195 A.2d 728, 738 (Md. 1963) ;

Beeman v. Michigan Board of Pharmacy, 35 N.W.2d 354

(Mich. 1949); Rosenblatt v. California State Board of

Medical Examiners, 140 P.2d 1089 (Cal. 1914).

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. Manson v. Edwards, 482 F.2d 1076, 1078

(6th Cir. 1973); Rubino v. Ghezzi, 512 F.2d 431 (2d Cir.

1975), cert. denied, 423 U.S. 89 (1975) ; Blassman v. Mark-

worth, 359 F. Supp. 1 (N.D. Til. 1973).

18. Since the framers of the Illinois Constitution of

1970 were aware of the provisions of the Act, and since

it is not inconsistent with Article VI, section 15(a) of

the Illinois Constitution of 1970, the Act does not vio-

late that constitutional provision by failing to prescribe

a retirement age. Furthermore, once the pension formula

exceptions have run their course the Act will prescribe a

retirement age. Smith-Hurd Ill. Anno. St., Commentary

to Art. VI, § 15(a), Ill. Const. 1970; Ill. Const. 1970, Tran-

sition Schedule, § 9; City of Chicago v. Pollution Con-

trol Board, 59 I1l.2d 484, 322 N.E.2d 11 (1975).

=

19. Public Act 80-1057 does not violate Article VI,

section 12(d) of the Illinois Constitution of 1970. Publie

Act 80-1057 does not prescribe a time within which a

judge seeking retention must file a declaration of can-

didacy to succeed himself which is “less than six months

before the general election preceding the expiration of

his term of office .. .” § 12(d). Indeed, the Act requires

filing well before the constitutional six-month deadline.

The purpose of this advancement of the filing deadline

was to enable the electorate at the ensuing primary and

general elections to fill judicial vacancies occasioned by

judges who decided not to seek retention.

FINAL JUDGMENT

Accordingly, on the basis of the foregoing Findings of

Fact and Conclusions of Law, judgment is hereby entered

for the defendants and against the plaintiffs as to all is-

sues raised by Counts I, II, and III of the Second Amend-

ed Complaint, all parties to bear their own costs and at-

torneys’ fees.

ENTER: /s/ Prentice H. Marshall, Judge

Prentice H. Marshall, Judge

Dated: July 11, 1978

— 7

ILLINOIS STATUTES AND

CONSTITUTIONAL PROVISIONS INVOLVED

Ch. 37, Ill. Rev. Stats. (1977) §§ 23.71, 23.72; Laws 1965,

p. 1792, § 1 and 4 2 eff. July 20, 1965, as amended by

Public Act 78-805, § 1, effective September 12, 1973.

§ 23.71 Automatic retirement — Conclusion of pending

matters

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 immediately follow-

ing the attainment of age 70 of such judge. Such judge

shall conclude all matters pending before him unless the

Supreme Court makes other provisions for the disposition

of such matters.

Laws 1965, p. 1792, § 1, eff. July 20, 1965.

§ 23.72 Continuance in office — Conditions — Date of

retirement

The provisions of Section 1 of this Act are suspended,

however, with respect to any judge in office on the effec-

tive date of this Act. Such judge may continue to serve

until the occurrence of one of the 3 following dates which-

ever occurs last: (1) January 1, 1976; or (2) the date

upon which such judge completes 18 years of judicial ser-

vice 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.

Upon reaching the date provided in this Section 2, which-

ever is appropriate, such judge is retired on the first

Monday in December next after the general election for

members of the General Assembly occurring immediately

after such retirement date except that such judge shall

complete all matters pending before him unless the Su-

preme Court makes other provisions for the disposition

of such matters.

Laws 1965, p. 1792, 4 2, eff. July 20, 1965.

—

§ 23.72 Continuance in office —- Conditions — Date of

retirement

The provisions of Section 1 of this Act are suspended,

however, with respect to any judge in office on the effec-

tive date of this Act. Such judge may continue to serve

until the occurrence of one of the 3 following dates which-

ever occurs last: (1) January 1, 1976; or (2) the date

upon which such judge completes 18 years of judicial ser-

vice in courts of record including all such service ren-

dered prior to, on, and after the effective date of this

a" or (3) the date upon which such judge reaches age

The provisions of Section 1 of this Act are aso sus-

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

cannot fulfill the minimum eligibility requirements under

the Judges Retirement System of Illinois, Article 18 of

the Illinois Pension Code, on the day of his becoming age

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

for the balance of his current term.

Upon reaching the date provided in this Section 2, which-

ever is appropriate, such judge is retired on the first

Monday in December next after the general election for

members of the General Assembly occurring immediately

after such retirement date except that such judge shall

complete all matters pending before him unless the Su-

preme Court makes other provisions for the disposition

of such matters.

Amended by P.A. 78-805, § 1, eff. Sept. 12, 1973

CONSTITUTION OF ILLINOIS 1970 ARTICLE VI

(Emphasis supplied.)

§ 10. Terms of Office

The terms of office of Supreme and Appellate Court

Judges shall be ten years; of Cireuit Judges, six years. . .

§ 11. Eligibility for Office

No person shall be eligible to be a Judge or Associate

Judge unless he is a United States citizen, a licensed at-

—

torney-at-law of this State, and a resident of the unit

which selects him. No change in the boundaries of a

unit shall affect the tenure in office of a Judge or Associate

Judge incumbent at the time of such change.

§ 12. Election and Retention

(a) Supreme, Appellate and Circuit Judges shall be

nominated at primary elections or by petition. Judges

shall be elected at general or judicial elections as the Gen-

eral Assembly shall provide by law. A person eligible for

the office of Judge may cause his name to appear on the

ballot as a candidate for Judge at the primary and at the

general or judicial elections by submitting petitions. The

General Assembly shall prescribe by law the requirements

for petitions.

(b) The office of a Judge shall be vacant upon his

death, resignation, retirement, removal, or upon the con-

clusion of his term without retention in office. Whenever

an additional Appellate or Circuit Judge is authorized by

law, the office shall be filled in the manner provided for

filling a vacancy in that office.

(c) A vacaney occurring in the office of Supreme, Ap-

pellate or Circuit Judge shall be filled as the General As-

sembly may provide by law. In the absence of a law, va-

cancies may be filled by appointment by the Supreme

Court. A person appointed to fill a vacancy 60 or more

days prior to the next primary election to nominate Judges

shall serve until the vacancy is filled for a term at the

next general or judicial election. A person appointed to

fill a vacancy less than 60 days prior to the next primary

election to nominate Judges shall serve until the vacancy

is filled at the second general or judicial election follow-

ing such appointment.

(d) Not less than six months before the general elec-

tion preceding the expiration of his term of office, a Su-

preme, Appellate or Circuit Judge who has been elected

to that office may file in the office of the Secretary of State

a declaration of candidacy to sueceed himself. The Secre-

tary of State, not less than 64 days before the election,

oii.

shall certify the Judge’s candidacy to the proper election

officials. The names of Judges seeking retention shall be

submitted to the electors, separately and without party

designation, on the sole question whether each Judge shall

be retained in office for another term. The retention elec-

tions shall be conducted at general elections in the appro-

priate Judicial District, for Supreme and Appellate Judges,

and in the circuit for Circuit Judges. The affirmative

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

shall elect the Judge to the office for a term commencing

on the first Monday in December following his election.

(e) A law reducing the number of Appellate or Cir-

cuit Judges shall be without prejudice to the right of the

Judges affected to seek retention in office. A reduction

shall become effective when a vacancy occurs in the af-

fected unit.

§15(a) The General Assembly may provide by law for

the retirement of Judges and Associate Judges at a pre-

scribed age. * * *

(b) A Judicial Inquiry Board ‘is created. The Su-

preme Court shall select two Circuit Judges as members

and the Governor shall appoint four persons who are not

lawyers and three lawyers as members of the Board. No

more than two of the lawyers and two of the non-lawyers

appointed by the Governor shall be members of the same

political party. The terms of Board members shall be

four years. A vacancy on the Board shall be filled for a

full term in the manner the original appointment was

made. No member may serve on the Board more than

eight years.

(c) The Board shall be convened permanently, with

authority to conduct investigations, receive or initiate

complaints concerning a Judge or Associate Judge, and

file complaints with the Courts Commission. The Board

shall not file a complaint unless five members believe that

a reasonable basis exists (1) to charge the Judge or Asso-

ciate Judge with willful misconduct in office, persistent fail-

— 3la —

ure to perform his duties, or other conduct that is preju-

dicial to the administration of justice or that brings the

judicial office into disrepute, or (2) to charge that the

Judge or Associate Judge is physically or mentally un-

able to perform his duties. All proceedings of the Board

shall be confidential except the filing of a complaint with

the Courts Commission. The Board shall prosecute the

complaint.

(d) The Board shall adopt rules governing its pro-

cedures. It shall have subpoena power and authority to

appoint and direct its staff. Members of the Board who

are not Judges shall receive per diem compensation and

necessary expenses; members who are Judges shall receive

necessary expenses only. The General Assembly by law

shall appropriate funds for the operation of the Board.

(e) A Courts Commission is created consisting of one

Supreme Court Judge selected by that Court, who shall

be its chairman, two Appellate Court Judges selected by

that Court, and two Circuit Judges selected by the Su-

preme Court. The Commission shall be convened per-

manently to hear complaints filed by the Judicial Inquiry

Board. The Commission shall have authority after no-

tice and public hearing, (1) to remove from office, sus-

pend without pay, censure or reprimand a Judge or

Associate Judge for willful misconduct in office persis-

tent failure to perform his duties, or other conduct that

is prejudicial to the administration of justice or that

brings the judicial office into disrepute, or (2) to suspend,

with or without pay, or retire a Judge or Associate Judge

who is physictally or mentally unable to perform his du-

ties.

(f) The concurrence of three members of the Com-

mission shall be necessary for a decision. The decision

of the Commission shall be final.

(g) The Commission shall adopt rules governing its

procedures and shall have power to issue subpoenas. The

General Assembly shall provide by law for the expenses

of the Commission.

~_ —

In The

UNITED STATES DISTRICT COURT

For The Northern District Of Illinois

Eastern Division

No. 78 C 1036

RAYMOND E. TRAFELET, DAVID A. CANEL, AR-

CHIBALD 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,

Plaintiffs,

vs.

JAMES R. THOMPSON, as Governor of Illinois; STATE

BOARD OF ELECTIONS OF THE STATE OF ILLI-

NOIS; and MICHAEL LAVELLE, as Chairman and

Member, and DON ADAMS, and FRANKLIN LUNDING,

JR., as Members of the State Board of Elections of the

State of Illinois; and MICHAEL J. BAKALIS, Comp-

troller of the State of Illinois; ALAN J. DIXON, as Sec-

retary of State of Illinois; ROY 0. GULLEY, as Director

of the Administrative Office of the Illinois Courts; and

JOHN J. McDONNELL, LEHMAN KRAUSE, JAMES

EDWARD DULL, and W. R. TODD,

Defendants,

and

ALLEN HARTMAN, BRIAN B. DUFF, DAVID J.

SHIELDS, JAMES A. ZAFIRATOS, ANTHONY J.

BOSCO, MELVIN M. LANDAU, MICHAEL P. TOO-

MIN, MARVIN H. RUTTENBERG, and JAMES J.

HEYDA,

Intervenor Defendants.

—_—

SECOND AMENDED

COMPLAINT FOR DECLARATORY JUDGMENT,

INJUNCTIVE AND OTHER EQUITABLE RELIEF

Plaintiffs by their attorney complain against Defen-

dants as follows:

COUNT I

Jurisdiction

1. The jurisdiction of this Court is invoked pursuant

to Title 28 U.S.C., Sections 1343(3), 1343(4), 1331, 2201

and 2202. This is a civil action authorized by Title 42

U.S.C. Section 1983 to redress the deprivation under color

of state law of rights, privileges and immunities secured

by the First, Fifth and Fourteenth Amendments to the

Constitution of the United States. This proceeding is for

a declaratory judgment that certain acts and practices of

Defendants violate the aforementioned rights secured by

the Constitution of the United States. This action also

seeks injunctive and other equitable relief against the

acts and practices complained of herein, and declaratory

relief. The matters in controversy exceed the value of

$10,000 exclusive of interest and costs and arise under

the Constitution of the United States.

Parties

1A. Plaintiff BENJAMIN NELSON is a Judge of the

Cireuit Court of Cook County, Illinois, and holds said

office by reason of election and pursuant to Certificate of

Election issued by the then Governor of Illinois on De-

cember 6, 1976, which certified his right to hold said office

until the first Monday in December of 1982, a true copy

of which Certificate is attached hereto and incorporated

as Exhibit F. He is a citizen of the United States and

a resident of the Northern District of Tllinois.

2. Plaintiff RAYMOND E. TRAFELET is a Judge of

the Circuit Court of Cook County, Illinois, and holds his

said office by reason of election and pursuant to Certificate

of Election issued by the then Governor of Illinois on

= ee

November 30, 1976, which certified his right to hold said

office until the first Monday in December of 1982, a true

copy of which Certificate is attached hereto and incorpo-

rated herein as Exhibit A. He is a citizen of the United

States and a resident of the Northern District of Illinois.

3. Plaintiff DAVID A. CANEL is a Judge of the Cir-

cuit Court of Cook County, Illinois, and holds his said

office by reason of election and pursuant to Certificate

of Election issued by the then Governor of Illinois on

November 30, 1972, which certified his right to hold said

office until the first Monday in December of 1978, a true

copy of which Certificate is attached hereto and incorpo-

rated herein as Exhibit B. He is a citizen of the United

States and a resident of the Northern District of Illinois.

4. Plaintiff ARCHIBALD J. CAREY, JR. is a Judge

of the Circuit Court of Cook County, Lllinois, and holds

his said office by reason of election and pursuant to Certi-

ficate of Election issued by the then Governor of Illinois

on November 30, 1976, which certified his right to hold

said office until the first Monday in December of 1982, a

true copy of which Certificate is attached hereto and in-

corporated herein as Exhibit C. He is a citizen of the

United States and a resident of the Northern District of

Illinois.

§.(a) Plaintiff PETER FITZPATRICK is a duly

registered voter who resides in Cook County, Illinois, He

is an attorney admitted to practice in Illinois. He is a

citizen of the United States and a resident of the Northern

District of Illinois.

(b) Plaintiff ALBERT W. WILLIAMS is a duly reg-

istered voter who resides in Cook County, Illinois. He

was Chairman of the Board, No. Carolina Mutual Life

Ins. Oo. He is a citizen of the United States and a resi-

dent of the Northern District of Illinois.

(c) Plaintiff, MELVIN B. LEWIS, is a duly regis-

tered voter who resides in Cook County, Illinois. He is

Professor of Law at John Marshall Law School. He is a

— 35a —

citizen of the United States and a resident of the North-

ern District of Illinois.

6. JAMES R. THOMPSON (‘‘THOMPSON’’) is the

Governor of Illinois,

7. Defendant STATE BOARD OF ELECTIONS OF

THE STATE OF ILLINOIS (‘‘BOARD’’) was created

by the General Assembly and serves pursuant to Ill. Rev.

Stats., Ch. 46, §1A-1, et seq., to perform duties assigned

to it by law. Defendants MICHAEL LAVELLE, as

Chairman, and member, and DON ADAMS, and FRANK-

LIN LUNDING, JR., as members, are presently the ap-

pointed and acting members of the STATE BOARD OF

ELECTIONS OF THE STATE OF ILLINOIS (herein-

after collectively ‘‘BOARD MEMBERS”’) and are vested

by law with the administration of the duties of the

BOARD.

8. Defendant MICHAEL J. BAKALIS is Comptroller

of the State of Illinois.

9. Defendant ALAN J. DIXON is the Secretary of

State of Illinois.

10. Defendant ROY O. GULLEY is the Director of the

Administrative Office of the Illinois Courts.

10A. Defendants JOHN J. McDONNELL, LEHMAN

KRAUSE, JAMES EDWARD DULL and W. R. TODD

and Intervening Defendants ALLEN HARTMAN, BRIAN

B. DUFF, DAVID J. SHIELDS, JAMES A ZAFIRA-

TOS, ANTHONY J. BOSCO, MELVIN M. LANDAU,

MICHAEL P. TOOMIN, MARVIN H. RUTTENBERG,

and JAMES J. HEYDA are each candidates nominated

for judicial offices in Illinois which defendants assert will

become vacant in December of 1978 by reason of the

mandatory retirement provisions pertaining to Illinois

judges, which are complained of herein, to wit:

— 36a — | — 37a —

Judge For Whose Class Action

udge For

Purported Vacancy Pte A ‘ rene Arse: mat ee be Nelson a ony

Candidate Defendants They Are Candidates ertinent Cour ring this action on their behalf and, pursuant to Rule 2

of the Federal Rules of Civil Procedure, on behalf of all

Allen Hartman Justice Mayer Goldberg Appellate Court, other Judges of the Circuit Court of Cook County and

Brian Duff First District all other counties of the State of Tllinois by are, or nen

; i id A. Canel Circuit, Cook be, subject to mandatory retirement under Tllinois law

seentaina a ats County at the age of 70 before the end of their certified terms of |

ae office or who will be denied the right to run for retention

oe by sr Judge Archibald J. Carey rile a of their said office because they have attained or will at-

scnae: LC0mun iligies tain the age of 70. The persons in the class referred to |

Anthony J. Bosco Judge Raymond Drymalski —Cireuit, Cook are so numerous that joinder of all members is imprac- f

Melvin A. Landau County ticable; there are questions of law and fact common to

dge Benjamin Nelson Circuit, Cook the class: the claims of the representative parties are

7On & ee a County | typical of the claims of the class; and the representative

: on k parties will fairly and adequately protect the interests

ae ee oe of the class, Tn addition, the Defendants have acted and

James J. Heyda : ma Be sa will act on grounds generally applicable to the class,

Lehman Krause Judge Alvin L. Williams 2d Circuit, thereby making appropriate final injunctive and declara-

James E. Dull Jefferson County tory relief with respect to the class as a whole. More-

W. R. Todd Judge E. Harold Wineland — 11th Circuit, over, the prosecution of separate actions by individual

Poe Clay County members of the class would create the risk of inconsistent

or varying adjudications with respect to individual mem- :

Each said defendant and intervening defendant claims or bers of the class which would establish incompatible

may claim an interest in this proceeding, though plaintiffs | standards of conduct for the defendant parties opposing

aver that said defendants have no rights in the premises, the class.

(b) Plaintiffs Peter Fitzpatrick, Albert W. Williams,

and Melvin B. Lewis bring this action on their behalf and,

pursuant to Rule 23 of the Federal Rules of Civil Pro-

cedure, on behalf of all other registered voters of Cook

County and all other counties of the State of Tllinois who

are, or will be denied the opportunity to vote for the

judicial candidates of their choice because the judicial

candidates of their choice are, or will be, subject to man-

datory retirement under Tllinois law at the age of 70.

The persons in the class referred to are so numerous that

joinder of all members is impracticable; there are ques-

tions of law and fact common to the class; the claims of

— 98a, —

the representative parties are typical of the claims of the

class; and the representative parties will fairly and ade-

quately protect the interests of the class. In adtlition, the

Defendants have acted and will act on grounds generally

applicable to the class, thereby making appropriate final

injunctive and declaratory relief with respect to the class

as a whole. Moreover, the prosecution of separate actions

by individual members of the class would create the risk

of inconsistent or varying adjudications with respect to

individual members of the class which would establish in-

compatible standards of conduct for the defendant parties

opposing the class.

Facts

12.(a) Plaintiffs Trafelet, Nelson and Carey are will-

ing, qualified, desirous, and fully able in all respects to

continue to serve as Judges of the Circuit Court to the

end of their elected terms in 1982. Plaintiff Canel is will-

ing, desirous, qualified and fully able in all respects to

serve as a Judge of the Cireuit Court beyond the end of

his current term in 1978, and he has filed with the Tllinois

Secretary of State DIXON his declaration of candidacy

to succeed himself in retention election to be held in No-

vember of 1978, all pursuant to Article 6. 112(d) of the

Tllinois Constitution of 1970, a true copy of which declara-

tion of candidacy is attached hereto and incorporated here-

in as Exhibit D.

(b) As shown hereinbelow, were it not for the manda-

tory retirement requirements under Tllinois law of which

complaint is made herein, Plaintiffs Trafelet, Nelson and

Carey would be entitled to serve as judges to the end

of their respective terms in 1982, and Plaintiff Canel

would be entitled to stand for election in 1978 on the

retention ballot for Judges of the Cireuit Court of Cook

County, but each Judge Plaintiff is barred by such man-

datory retirement from doing so entirely because of their

respective ages. ts

18.(a) Plaintiff Canel was born June 19, 1906, and at-

tained his 70th birthday on June 19, 1976. He was first

— 39a —

elected as a Judge of the Circuit Court of Cook County

in 1959, and was retained by retention elections for judges

in 1966 and 1972, certified as aforesaid.

(b) Plaintiff Trafelet was born June 13, 1907, and

attained his 70th birthday on June 13, 1977. He was first

elected as a Judge of the Circuit Court of Cook County

in 1968, and was retained by retention elections for judges

in 1970 and 1976, certified as aforesaid.

(c) Plaintiff Nelson was born March 6, 1904, and at-

tained his 70th birthday on March 6, 1974. He was first

elected as a Judge of the Municipal Court of Chicago

in 1960 and thereafter by law became a judge of the Cir-

cuit Court of Cook County, and was retained by reten-

tion elections for judges in 1964, 1970, and 1976, last cer-

tified as aforesaid.

(d) Plaintiff Carey was born February 29, 1908, and

attained his 70th birthday on March 1, 1978. He was first

elected as a Judge of the Circuit Court of Cook County in

1966, and was retained by retention elections for judges

in 1970 and 1976, certified as aforesaid.

14.(a) MELVIN B. LEWIS, as a duly registered

voter, voted for Plaintiff Raymond FE. Trafelet for the

office of Judge of the Circuit Court of Cook County, IIli-

nois, in the 1976 election for judicial retention, and he

wants to vote for Trafelet’s retention in the future and

for election and retention of some other Judges in the

Judges class. But his said vote in 1976 has been nullified

and he is denied the right to vote for the judicial candi-

date of his choice because of the mandatory retirement

provision in the Illinois law which requires judges to

retire at the age of 70.

(b) PETER FITZPATRICK, as a duly registered

voter, voted for Plaintiff David A. Canel for the office of

Judge of the Cireuit Court of Cook County, Illinois, in

the 1972 election for judicial retention and he wants to

vote for Canel’s retention in the election to be held in

November of 1978, and for election and retention in future

—- 4a —

elections of other Judges in the Judges class. But he is

denied the right to vote for the judicial candidate of his

choice because of the mandatory retirement provision in

the Illinois law which requires judges to retire at the

age of 70.

(ec) ALBERT W. WILLIAMS, as a duly registered

voter, voted for Plaintiff Archibald J. Carey, Jr. for the

office of Judge of the Circuit Court of Cook County, Tili-

nois, in the 1976 election for judicial retention and he

wants to vote for Carey’s retention in the future and

for election and retention in future elections of other

judges in the Judges class. But his said vote in 1976 has

been nullified and he is denied the right to vote for the

judicial candidate of his choice in the future because of

the mandatory retirement provision in the Illinois law

which requires judges to reire at the age of 70.

15. The Constitution of Illinois (1970), Article 6, pro-

vides in pertinent part as to Judges and election or

retention of Circuit Judges in Illinois and the duties of

the Secretary of State pertaining to retention of judges:

§ 10. Terms of Office

The terms of office of Supreme and Appellate Court

Judges shall be ten years; of Circuit Judges, six

years. ...

§ 11. Eligibility for Office

No person shall be eligible to be a Judge or Asso-

ciate Judge unless he is a United States citizen, a

licensed attorney-at-law of this State, and a resident

of the unit which selects him. No change in the

boundaries of a unit shall affect the tenure in office

of a Judge or Associate Judge incumbent at the time

of such change.

§ 12. Election and Retention

(a) Supreme, Appellate and Circuit Judges shall

be nominated at primary elections or by petition.

Judges shall be elected at general or judicial elections

as the General Assembly shall provide by law. A

— 41a —

person eligible for the office of Judge may cause his

name to appear on the ballot as a candidate for

Judge at the primary and at the general or judicial

elections by submitting petitions. The General As-

sembly shall prescribe by law the requirements for

petitions.

(b) The office of a Judge shali be vacant upon

his death, resignation, retirement, removal, or upon

the conclusion of his term without retention in office.

Whenever an additional Appellate or Circuit Judge

is authorized by law, the office shall be filled in the

manner provided for filling a vacancy in that office.

(c) A vacancy occurring in the office of Supreme,

Appellate or Circuit Judge shall be filled as the Gen-

eral Assembly may provide by law. In the absence of

a law, vacancies may be filled by appointment by the

Supreme Court. A person appointed to fill a vacancy

60 or more days prior to the next primary election

to nominate Judges shall serve until the vacancy is

filled for a term at the next general or judicial elec-

tion. A person appointed to fill a vacancy less than

60 days prior to the next primary election to nominate

Judges shall serve until the vacancy is filled at the

second general or judicial election following such ap-

pointment.

(d) Not less than six months before the general

election preceding the expiration of his term of office,

a Supreme, Appellate or Circuit Judge who has been

elected to that office may file in the office of the Secre-

tary of State a declaration of candidacy to succeed

himself. The Secretary of State, not less than 63 days

before the election, shall certify the Judge’s candi-

dacy to the proper election officials. The names of

Judges seeking retention shall be submitted to the

electors, separately and without party designation,

on the sole question whether each Judge shall be

retained in office for another term. The retention

elections shall be conducted at general elections in

the appropriate Judicial District, for Supreme and

——_

Appellate Judges, and in the circuit for Circuit

J = 09 The oasis vote of three-fifths of the

electors voting on the question shall elect the Judge

to the office for a term commencing on the first Mon-

day in December following his election.

(e) A law reducing the number of Appellate or

Circuit Judges shall be without prejudice to the right

of the Judges affected to seek retention in office. A

reduction shall become effective when a vacancy 0c-

curs in the affected unit.

16.

Pursuant to the foregoing provisions, the Illinois

Legislature has provided for the election and retention

of Cireuit and other Judges of Illinois in The Election

Code,

Ch. 46, Ill. Rev. Stats. 41-1 et seq., and other

statutes pursuant to which Defendants have inter alia the

following duties applicable herein:

(a)

(b)

(c)

The defendant Board and its members, upon receipt

from county and local election authorities of the

official canvassas of elections for judges, is to

certify and transmit to the defendant State Con-

troller a list of persons elected to judicial vacancies,

or retained in office. Also, the Defendant Board

transmit to the Supreme Court the names of per-

sons elected to judgeships in adversary elections

and the names of judges who win or fail to win

retention in office. In addition, the Defendant Board

causes to be placed on the retention ballot the

names of judges seeking retention.

Upon receipt of certificate from the Defendant

Board, the State Controller is to include all cer-

tified persons for payments by the State for judi-

cial duties, and thereupon exclude from such pay-

ments all persons formerly Judges whose positions

became vacant, or were not retained.

The defendant Governor is to issue certificates of

election to persons newly elected as judges to fill

the vacancies existing in judicial offices, or who

were retained in office,

ow 480,

(d) Defendant Gulley causes Judges to be barred from

(e)

and taken off the State Judicial Payroll pursuant

to the mandatory retirement act, and he causes

other persons elected to the supposed vacancies of

the mandatorily retired judges to be added to that

payroll.

The defendant Secretary of State is to accept

declarations of candidacy for judges seeking reten-

tion and certify same to the proper local election

officials and the defendant Board and its members.

However, pursuant to Public Act 80-1057 enacted

over veto effective November 23, 1977, Ch. 46, TI.

Rev. Stats. §7A-1, the Illinois Legislature has

further provided, contrary to the Article 6, $12(d)

of the Illinois Constitution, that:

“Any Supreme, Appellate or Circuit Judge who

has been elected to that office and who seeks

to be retained in that office under subsection

(d) of Section 12 of Article VI of the Constitu-

tion shall file a declaration of candidacy to

succeed himself in the office of the Secretary of

State on or before the first Monday in December

before the general election preceding the ex-

piration of his term of office. The Secretary of

State, not less than 63 days before the election,

shall certify the Judge’s candidacy to the

proper election officials. The names of Judges

seeking retention shall be submitted to the

electors, separately and without party desig-

nation, on the sole question whether each J udge

shall be retained in office for another term.

The retention elections shall be conducted at

general elections in the appropriate Judicial

District, for Supreme and Appellate Judges,

and in the circuit for Circuit Judges. The

affirmative vote of three-fifths of the electors

voting on the question shall elect the J udge

to the office for a term commencing on the first

Monday in December following his election.”

(Emphasis added.)

pe ae

Therefore, pursuant to Public Act 80-1057, the

defendant Secretary of State will not accept any

such declarations for the 1978 retention election

filed after the first Monday in December of 1977,

rather than accepting such filings up to six months

prior to the 1978 election as permitted by the

Illinois Constitution.

17. The Constitution of Ilinois (1970) further pro-

vides in Article 6 in pertinent part that

Ҥ15(a) The General Assembly may provide by law

for the retirement of Judges and Associate Judges

at a prescribed age. * * °”

Pursuant to that provision, and prior authority the Illi-

nois General Assembly adopted the following provisions

in 1965 and 1973, Chapter 37, Ill. Rev. Stat. §§ 23.71,

23.72, pursuant to which Plaintiff Judges will lose their

offices on December 4, 1978 and thereafter be disqualified

from election or retention:

§ 23.71 Automatic retirement - Conclusion of

pending matters

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 im-

mediately following the attainment of age 70 of such

judge. Such judge shall conclude all matters pending

before him unless the Supreme Court makes other

provisions for the dispositions of such matters.

Laws 1965, p. 1792, § 1, eff. July 20, 1965.

§ 23.72 Continuance in office — Conditions —

Date of retirement

The provisions of Section 1 of this Act are suspended,

however, with respect to any judge in office on the

effective date of this Act. 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

— 45a —

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.

Upon reaching the date provided 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 occur-

ring immediately after such retirement date except

that such judge shall complete all matters pending

before him unless the Supreme Court makes other

provisions for the disposition of such matters.

Laws 1965, p. 1792, § 2, eff. July 20, 1965.

§ 23.72 Continuance in office—Conditions—Date

of retirement

The provisions of Section 1 of this Act are suspended,

however, with respect to any judge in office on the

eifective date of this Act. 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 in-

cluding 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 re-

quirements under the Judges Retirement System of

Illinois, Article 18 of the Illinois Pension Code, on

the day of his becoming age 70, but who can do so

by remaining in office after age 70 for the balance

of his current term.

Upon reaching the date provided 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 occur-

ring immediately after such retirement date except

that such judge shall complete all matters pending

= =

before him unless the Supreme Court makes other

provisions for the disposition of such matters.

Amended by P.A. 78-805, § 1, eff. Sept. 12, 1973.

— 47a —

compensation and necessary expenses; members who

are Judges shall receive necessary expenses only.

The General Assembly by law shall appropriate funds

for the operation of the Board.

18(a). The Constitution of Mlinois (1970) further

provides as to discipline and removal of judges, Article

6, $15:

(e) A Courts Commission is created consisting of

one Supreme Court Judge selected by that Court,

(b) A Judicial Inquiry Board is created. The

Supreme Court shall select two Circuit Judges as

members and the Governor shall appoint four persons

who are not lawyers and three lawyers as members

of the Board. No more than two of the lawyers and

two of the non-lawyers appointed by the Governor

shall be members of the same political party. The

terms of Board members shall be four years. A

vacancy on the Board shall be filled for a full term

in the manner the original appointment was made.

No member may serve on the Board more than eight

years.

(ec) The Board shall be convened permanently,

with authority to conduct investigations, receive or

initiate complaints concerning a Judge or Associate

Judge, and file complaints with the Courts Commis-

sion. The Board shall not file a complaint unless

five members believe that a reasonable basis exists

(1) to charge the Judge or Associate Judge with

willful misconduct in office, persistent failure to per-

form his duties, or other conduct that is prejudicial

to the administration of justice or that brings the

judicial office into disrepute, or (2) to charge that

the Judge or Associate Judge is physically or mentally

unable to perform his duties. All proceedings of the

Board shall be confidential except the filing of a com-

plaint with the Courts Commission. The Board shall

prosecute the complaint.

(d) The Board shall adopt rules governing its

procedures. It shall have subpoena power and au-

thority to appoint and direct its staff. Members of

the Board who are not Judges shall receive per diem

who shall be its chairman, two Appellate Court Judges

selected by that Court, and two Circuit Judges se-

lected by the Supreme Court. The Commission shall

be convened permanently to hear complaints filed

by the Judicial Inquiry Board. The Commission shall

have authority after notice and public hearing, (1)

to remove from office, suspend without pay, censure

or reprimand a Judge or Associate Judge for willful

misconduct in office, persistent failure to perform his

duties, or other conduct that is prejudicial to the ad-

ministration of justice or that brings the judicial

office into disrepute, or (2) to suspend, with or without

pay, or retire a Judge or Associate Judge who is

physically or mentally unable to perform his duties.

(f) The concurrence of three members of the

Commission shall be necessary for a decision. The

decision of the Commission shall be final.

_ (g) The Commission shall adopt rules governing

its procedures and shall have power to issue sub-

poenas. The General Assembly shall provide by law

for the expenses of the Commission.

(Emphasis supplied.)

_(b). Pursuant to the foregoing Constitutional provi-

sions, the Illinois Supreme Court has appointed a Judicial

Inquiry Board and Courts Commission. Further, that

Court established Standards of Judicial Conduct and other

requirements, and has authorized discipline of Judges

by the Courts Commission established by the Constitution

ay alge — and requirements. Ch. 110A,

v. s. ough §71 (Illinois Supre

Rules, $61 through §71). ar teat

=

19. No other elected official in Illinois is forced to

retire or is disqualified from holding his elected office

by reason of attaining a maximum age. All other elected

officials in Illinois become disqualified from holding

elected office pursuant to Chapter 46, Ill. Rev. Stats. §25-2,

Events on which elective office become vacant, which pro-

vides :

“Every elective office shall become vacant on the

happening of either of the following events, before

the expiration of the term of such office:

First — The death of the incumbent.

Second — His resignation.

Third — His becoming insane.

Fourth — His ceasing to be an inhabitant of the

State; or if the office is local, his ceasing to be an

inhabitant of the district, county, town, or precinct

for which he was elected; Provided, that the pro-

visions of this paragraph shall not apply to township

officers whose township boundaries are changed in

accordance with section 3a of Article III of ‘An Act

to revise the law in relation to township organization’,

approved March 4, 1874, as amended.

Fifth — His conviction of an infamous crime, or of

any offense involving a violation of official oath.

Sixth — His removal from office.

Seventh — His refusal or neglect to take his oath

of office, or to give or renew his official bond, or to

deposit or file such oath or bond within the time

prescribed by law.

EKighth — The decision of a competent tribunal

declaring his election void.

No elective office, except as herein otherwise pro-

vided, shall become vacant until the successor of the

incumbent of such office has been appointed or elected,

as the case may be, and qualified.” 1943, May 11,

Laws 1943, Vol. 2, p. 1, §25-2,

— 49a —

20. Pursuant to the foregoing Constitutional provi-

sions, statutes, and rules of the Illinois Supreme Court,

were it not for the statutes mandating retirement and

disqualification of judges who have attained the age of 70,

(a) Plaintiffs Trafelet, Nelson and Carey, having been

duly retained and certified by Certificates of Elec-

tion to serve until 1982, are entitled to serve until

the expiration of their terms and thereafter seek

retention in office, subject only to possible removal

or discipline by the Courts Commission for reasons

set forth in the Constitution and Illinois Supreme

Court Rules and subject to the procedural rights

afforded them under the Illinois and United States

Constitutions and granted by the Inquiry Board and

Commission.

(b) Plaintiff Canel, having been previously elected as

a Judge of the Circuit Court to serve until 1978,

is entitled, subject only to possible removal or

discipline by the Courts Commission for reasons

set forth in the Constitution and Illinois Supreme

Court Rules and subject to the procedural rights

afforded him under the Illinois and United States

Constitutions and granted by the Inquiry Board

and Commission, to declare his candidacy for reten-

tion in the election to be held in November of 1978,

and have his candidacy for such retention certified

by the Illinois Secretary of State to the proper

election officials not less than 63 days before the

election, to wit, no later than September 5, 1978.

21. Pursuant to the foregoing Constitutional provi-

sions, statutes, and rules of the Illinois Supreme Court,

were it not for the statutes mandating retirement and

disqualification of judges who have attained the age of 70:

(a) Plaintiffs Lewis and Williams, being duly regis-

tered voters, would be able to vote for the judicial .candi-

dates of their choice, Trafelet and Carey respectively,

for retention in the future, and for retention and election

— 50a —

of other members of the Judges class, and would not

have their prior votes for Trafelet and Carey respectively

diluted and nullified.

(b) Plaintiff Fitzpatrick, being a duly registered voter,

would be able to vote for the judicial candidate of his

choice, Canel, for retention in the November, 1978 election,

and for retention and election of other members of the

Judges class in that and future elections.

22. The Defendants hereto, and each of them, have,

however, complied with, enforced, and have demonstrated

their respective intent in the future unless restrained

by this Court to comply with and enforce the mandatory

requirement provisions as aforesaid pertaining to Judges,

to wit Ch. 37, Ill. Rev. Stats. $§ 23.71, 23.72, so as to pre-

vent Plaintiffs Trafelet and Carey and other judges

similarly situated from holding their judicial offices until

the completion of their respective terms, and so as to

prevent Plaintiff Canel and others similarly situated from

filing for retention, in the following particulars, to wit:

(a)(i) Defendant Dixon as Secretary of State has re-

fused and will continue to refuse to certify to

the State Board of Elections and other appro-

priate election officials no later than September

5, 1976, for inclusion on retention ballots Plain-

tiff Canel and all other judges similarly situated

who have attained the age of 70 years, and there-

fore Canel and the others similarly situated will

not appear on the retention ballot for Judges

im the elections to be held in November of 1978,

and subsequently.

(ii) Beeause of Public Act 80-1057, enacted as aforesaid

effective November 23, 1977, the Defendant Secre-

tary was not required to accept after the first

Monday in December, 1977, declarations of candi-

dacy from judges who desire to seek retention in

the 1978 election and who may be members of the

Plaintiff Judges’ class entitled to benefit hereby

but who believed their retirement was mandated

| — 5la —

by the provisions complained of herein and who

have therefore not heretofore filed for retention.

The foregoing is so despite the Illinois Constitution

which would permit such filings with the Defendant

Secretary of State through May 7, 1978. One mem-

ber of the Judges’ class who was thereby affected

was Judge E. Harold Wineland, who filed his

declaration of candidacy in April, 1978, after learn-

ing of the pendency of this case, a true copy of

which declaration is attached as Exhibit G.

(b) The State Board of Elections and its Chairman

and Members have recognized and declared that the

offices of Plaintiffs Trafelet, Canel, Nelson and

Carey and all Judges similarly situated are and

were vacant, and have certified that other persons

currently are running for the supposed vacancies

of the offices of these Judge Plaintiffs and such

other judges, as is more fully shown by the List

of Candidates published by those defendants for

the state-wide primary election to be held March

21, 1978, a true copy of the pertinent portions

of which applicable to judicial elections (pp. 78-79)

is attached hereto and incorporated herein as Ex-

hibit E. Accordingly, those defendants have in the

past and will in the future, unless restrained by

this Court, certify to the Governor and to the

State Comptroller the election of persons other than

j these Judge Plaintiffs and other Judges similarly

situated, to the supposed vacancies existing only

by reason of the aforesaid mandatory retirement

provisions of Illinois law. Also pursuant to the

Secretary of State’s refusal to certify Plaintiff

Canel and all judges similarly situated to the State

Board of Election and other appropriate election

officials, the Defendant State Board, which sets up

the retention ballots, has refused in the past and

will refuse in the future, unless restrained by this

Court, to put on the retention ballots. the name

of Judge Canel and all judges similarly situated

=e

by reason of the aforesaid mandatory retirement

provisions of Illinois law.

(c) The Governor of Illinois has in the past, and will

continue to in the future, unless restrained by this

Court, upon receipt of certificates from the State

Board of Elections and its members of the election

of new persons to supposed judicial vacancies

created as aforesaid by mandatory retirement,

issued and will continue to issue certificates of

election to the persons supposedly elected to such

vacancies.

(d) The Comptroller of Illinois has in the past, and

will continue to in the future unless restrained by

this Court, upon receipt of certificates and receipt

of a list of persons from the State Board of Elec-

tions and its members of the election of new persons

to supposed judicial vacancies created as aforesaid

by mandatory retirement, provided for payment of

salaries of such new persons and he has terminated

and will continue to terminate plaintiff Judges and

others similarly situated from receiving their sal-

aries as Judges.

(e) Defendant Gulley has in the past removed and will

continue in the future to remove from the Judicial

payroll pursuant to the aforesaid mandatory retire-

ment provision Plaintiffs Trafelet, Canel, Nelson

and Carey and all judges similarly situated unless

restrained by this Court. Further, Defendant Gulley

has in the past and will continue in the future, un-

less restrained by this Court, to add to that payroll

other persons elected to the supposed vacancies

of the mandatorily retired judges.

23. Because Plaintiffs Trafelet and Carey were each

first elected to the bench after July 20, 1965, neither of

these Judge Plaintiffs is protected by the so-called “grand-

father clauses” enacted as part of the mandatory retire-

ment act, Ch. 37, Ill. Rev. Stats. $23.72(1)(2)(3). These

Judge Plaintiffs are thus treated differently than judges

— 53a —

holding office prior to that date who are entitled to a

minimum of 18 years of judicial service before retirement

under §23.72(2), even if such 18 years extends beyond

the age of 70. Plaintiffs Trafelet and Carey will, if per-

mitted to complete 18 years of judicial service, be able to

serve as follows:

(a) Plaintiff Trafelet, until 1986

(b) Plaintiff Carey, until 1984.

24. Each Judge Plaintiff has fulfilled the minimum

eligibility requirements under the Judges Retirement Sys-

tem of Illinois, (Article 18 of the Illinois Pension Code,

Ch. 10814, §18-1 et seq.) and therefore they do not benefit

from the provisions of the mandatory retirement act

suspending application of that act to permit each judge

to fulfill such minimum eligibility standards, Ch. 37 III.

Rev. Stats. $23.71, §23.72. However, under the Judges

Retirement System of Illinois as aforesaid, the vested

pension right of each judge increases with the number

of years he serves. Thus, each Judge Plaintiff will, if

forced to retire at the end of 1978, pursuant to mandatory

retirement provisions, lose substantial pension rights

which would otherwise have vested in them by reason

of continued service as judges. Moreover, the J udge

plaintiffs are treated differently than judges protected

from retirement at age 70 by $23.72 as amended in 1973,

as are many members of the Judges class.

25. By reason of the mandatory retirement provisions

applicable to judges, the Judge Plaintiffs and each of

them are about to lose their judicial positions without any

fault on their part and without a showing of any mis-

conduct or demonstrated physical or mental inability to

serve pursuant to the hearings and procedural require-

ments for discipline or removal of judges, as is required

and provided by the Constitution of Illinois and Rules

of Illinois Supreme Court as aforesaid; while judges who

have not attained 70 years of age are entitled to hold

office unless removed or disciplined pursuant to those

Illinois Constitutional requirements and Supreme Court

=

Rules, and while many other judges older than 70 years

of age were and are protected and remain eligible to

continue in judicial office by reason of the 1965 “grand-

father clauses” and 1973 savings clause and amendment.

Further the Judge Plaintiffs are denied their rights to

run for retention or re-election to judicial office.

26. The Mandatory Retirement Act, Ch. 37 Ill. Rev.

Stats. §23.71, §23.72, which operates to remove judges

from office at age 70 is not rationally related to any

legitimate object of that Statute or the State of Illinois,

in that:

(a) No state purpose for the mandatory retirement of

judges at age 70 is articulated in the Act;

(b) No identifiable State purpose exists for the manda-

tory retirement of judges at age 70;

(c) No relationship exists between forced retirement

at age 70 and an individual judge being unfit to

perform his judicial duties after age 70; and

(d) No judges who are unfit are excluded by the Act,

or in the alternative so few judges who are unfit

are excluded, as to render the age 70 classification

unrelated to the objective of the State, if in fact

the State’s objective is to exclude unfit judges.

27. The Mandatory Retirement Act, Ch. 37 Ill. Rev.

Stats. §23.71, $23.72, denies Plaintiffs Trafelet, Canel,

Nelson and Carey, who are otherwise qualified, and the

members of their class the right to seek judicial office

and also denies Plaintiffs Fitzpatrick, Williams and Lewis

and the members of their class the right to vote for the

judicial candidates of their choice and dilutes and null-

ifies their votes in the past. No compelling state purpose

is cited in the Act, nor does a compelling state purpose

exist for the denial of the above stated fundamental rights.

28. By reason of forced retirement, Plaintiffs Trafelet,

Canel, Nelson, and Carey and the members of the class

they represent will shortly be deprived of the right to

hold their judicial office to the expiration of their respec-

—

tive terms and/or will.shortly be deprived of the right

to be eligible to seek retention or election to judicial. of-

fice in the future.

29. By reason of forced retirement, Plaintiffs Nelson,

Trafelet and Carey and the members of the class they

represent are and will be deprived of the right to hold

their respective offices until the completion of their re-

spective terms, and therefore will suffer diminutions in

income and be deprived of the opportunity to contribute

to judicial service to which they have been elected by law

and vote of the electorate. By reason of forced retire-

ment Plaintiff Canel and the members of the Judges class

represented by Plaintiffs are and will be deprived of the

right to seek retention in elected office and therefore will

suffer diminutions in income.

30. Plaintiffs Trafelet, Canel, Nelson and Carey, and

members of the class they represent will suffer physical

and mental harm to their well-being by reason of the

cessation of active employment in their chosen profession

and the change in living conditions necessitated thereby.

31. Plaintiffs Trafelet, Canel, Nelson and Carey, and

members of the class they represent will experience pen-

sion payments smaller than those they would receive

were they allowed to continue in or seek retention in their

office. Moreover, these Judge Plaintiffs and members of

the class they represent are barred from further contrib-

uting to their pension fund after retirement, thereby bar-

ring their ability to increase their retirement income.

32. By reason of the forced retirement of Plaintiffs

Trafelet, Canel, Nelson and Carey, and members of the

class they represent, these Judge Plaintiffs and other

judges are stigmatized by being in effect designated as

unsuited for performing in their professions, thereby im-

pairing their future employment opportunities.

33. By reason of forced retirement of Plaintiffs Traf-

elet, Canel, Nelson and Carey, and members of the class

they represent, these Judge Plaintiffs and other judges

a, pod

are damaged in their standing in their communities by

being discharged from their employment and thereby be-

ing “in effect designated as unsuited for performing in

their professions. No equivalent employment is, or will

be, available to them following their forced retirement.

34. By reason of the forced retirement of Plaintiffs

Nelson, Trafelet, Canel and Carey and the members of

the class they represent, Plaintiffs Fitzpatrick, Williams

and Lewis and the members of the class they represent

are not able and will not be able to vote for the judicial

candidates of their choice for the elected office of judge.

35. Defendants are acting and will continue to act un-

der color of the laws of the State of Illinois to deprive

Plaintiffs Trafelet, Canel, Nelson and Carey, and the

members of the class they represent of rights secured by

the First, and Fourteenth Amendments to the Constitu-

tion of the United States in that:

(a) These Judges are forced to retire solely because

they have reached age 70, without any regard to

their abilities to perform their assigned duties, and

with no due process rights being accorded them,

with the result being they are subjected to arbi-

trary, capricious, and irrational deprivation of their

rights otherwise under law to hold judicial office

and to seek retention of judicial office and to seek

election to judicial office, without due process of

law, in violation of the due process clauses of the

Fifth and Fourteenth Amendments to the Consti-

tution of the United States.

(b) These Judges are involuntarily classified in a class

characterized solely on the basis of age and thence

subjected to arbitrary and invidious treatment by

reason of such classification, in that they are de- |

prived of judicial office, deprived of the right to

retain their judicial office and deprived of the right

to seek election to judicial office, in violation of the

equal protection clause of the Fourteenth Amend-

ment to the Constitution of the United States.

(ec)

(d)

— 57a —

These Judges are being invidiously discriminated

against because they are involuntarily retired and

disqualified from holding judicial office and from

seeking retention to judicial office and from seek-

ing election to judicial office, all without any cause

or procedural rights, on the sole basis of their

having attained the age of 70, whereas (1) all oth-

er Judges can be removed only pursuant to the

disciplinary provisions of the Illinois Constitution

and Illinois Supreme Court Rules, and only after

being accorded full due process rights including

written charges, a hearing, representation by coun-

sel, the opportunity to offer evidence and wit-

nesses, maintenance of a record, and other pro-

cedural steps provided pursuant to the Illinois

Constitution and procedures of the Judicial Board

and Courts Commission; (2) many other judges

have been and are protected by the ‘‘grandfather

clauses’’ of the retirement act, so as to remain in

office for 18 years, many years after attaining the

age of 70; (3) other persons who qualify under

Article 6, §11 to seek election to the judiciary may

do so, whereas Plaintiffs and the class they rep-

resent are barred from doing so solely because

of their age; (4) all other elected officials who reach

the age of 70 in the State of Illinois are not so

barred; (5) other “1idges are permitted to acquire

longer years of service and therefore longer pen-

sion rights; and (6) other judges were protected

by the savings clause enacted as amendement to

§23.72 in 1973, so as to remain in office until achiev-

ing minimum retirement benefits, many years after

attaining age 70.

Many judges in the Judges’ class are entitled to

seek retention but did not file for retention by the

first Monday in December, 1977, pursuant to Pub-

lic Act 80-1057 as aforesaid because they believed

themselves to be disqualified from retention by

the mandatory retirement provisions complained

of herein. Because they had only a few weeks to

— 58a —

file, under that Public Act after it became effec-

tive, they had no conceivable time to seek within

that period a declaration of their rights as prayed

for herein. By cutting short the filing date for re-

tention under Public Aet 80-1057, rather than per-

mitting such filing by May 7, 1978, as permitted

by the Illinois Constitution, that Public Act acts

in conjunction with the mandatory retirement pro-

visions complained of to deny these members of the

Judges’ class their rights under the First, Fifth

and Fourteenth Amendments for the reasons set

forth in subparagraphs (a), (b), and (c) hereof.

36. Defendants are acting and will continue to act

under color of the laws of the State of Illinois to deprive

Plaintiffs Fitzpatrick, Williams and Lewis and the mem-

bers of the class they represent of rights secured by the

First and Fourteeenth Amendments to the Constitution

of the United States in that duly registered voters are de-

nied the opportunity to vote for the judicial candidates

of their choice.

37. Both the Judge Plaintiffs and the Voter Plaintiffs

and the members of the classes they represent have no

adequate remedy at law to redress the wrongs alleged

herein. All the Plaintiffs and the members of the classes

they represent face imminent and irreparable injury from

the actions of the Defendants, as set forth herein, unless

restrained by this Court. An actual controversy exists be-

tween the parties hereto.

WHEREFORE, Plaintiffs Trafelet, Canel, Nelson and

Carey pray that this Court certify them to be represen-

tatives of the class they represent and Plaintiffs Fitz-

patrick, Williams and Lewis pray that this Court certify

them to be representatives of the class they represent.

All the Plaintiffs further pray that this Court enter judg-

ment as follows:

A. That the Court declare the rights of the parties,

including the Plaintiffs and the classes represented

by them, and declare:

— 59a —

(1) that the Illinois Act relating to compulsory re-

tirement of judges, Laws 1965, p. 1792, §1, 42,

as amended by P.A. 78-805, §$1 [Chapter 37,

Til. Rev. Stats. (1975) §23.71, and §23.72, as

amended] both on its face and as applied, and

also Public Act 80-1057, Chapter 46, Til. Rev.

Stats. (1975) §7A-1 as applied to the Judges’

class herein, be declared in violation of the

First, Fifth and Fourteenth Amendments to

the United States Constitution, by reason of

depriving Plaintiffs and their classes, under

color of law, of their rights, privileges and

immunities without due process, and further

because such Act deprives them of their rights

to equal protection of the law;

(2) that the offices of Plaintiffs Trafelet, Nelson

and Carey and other judges in the class they

represent who will not have completed their

certified terms of office by December 4, 1978,

are and will not be vacant, after that date or

until the completion of their respective certi-

fied terms of office, by reason of the afore-

said Act for compulsory retirement;

(3) that the Plaintiff Canel, and other judges in

the Judges class whose certified terms will ex-

pire December 4, 1978, are not disqualified by

the aforesaid Act for compulsory retirement

to seek retention in office pursuant to Article

6 of the 1970 Constitution of Tlinois, and that

the offices of such. judges who timely file by

May 7, 1978 Declarations of Candidacy with the

Illinois Secretary of State to succeed themseves

are not vacant or subject to election of others.

(4) that any elections to fill any and all vacancies

in judicial office created by reason of the said

Act relating to compulsory retirement of Judges

are null, void, and of no effect; and

(5) that the Judge Plaintiffs and the class they

represent are not disqualified by reason of said

B.

— 60a —

Act from running for election to judicial office

in Illinois, or for retention to judicial office in

Tilinois.

That the Defendants and each of them, and

their ag-nts, servants, and attorneys, be preliminarily

lite and then permanently restrained and

enjoined as follows:

(1)

(2)

(3)

(4)

As to all Defendants, from enforcing or rec-

ognizing by any official act on their part the

requirements of the aforesaid Tilinois Act re-

leting to compulsory retirement of judges;

As to the Defendant Governor Thompson, from

issuing certificates of election to any persons

purportedly elected to the supposed vacancies

ereated by effect of the said Act relating to

compulsory retirement of judges;

As to the Defendants Board and Board Mem-

bers and their successors, from certifying any

vacancies in judicial office and by certifying

names of individuals as candidates to such va-

eancies by reason of said Act relating to com-

pulsory retirement of judges, and from certi-

fying any election of persons supposedly elected

to judicial offices made vacant by reason of

said Act and from not including on the judicial

retention ballots in November, 1978 and subse-

quent years Canel and all judges who timely

filed Declarations of Candidacy with said De-

fendant pursuant to the 1970 Constitution of

Tilinois, and without regard to the said Act

for compulsory retirement of judges and the

filing date set forth in Public Act 80-1057.

As to the Defendant Controller Bakalis, from

causing the Judge Plaintiffs and the class rep-

resented by these Plaintiffs to lose their com-

pensation for their judicial offices by reason

of said Act, and from causing new persons

purportedly elected to vacancies created by said

(5)

(6)

— 6la—

Act to be paid any compensation for ju-

dicial offices ; és ; Sigleg

As to the Defendant Director Gulley, from

causing the Plaintiffs Trafelet, Canel and Nel-

son Carey and the class represented by these

Plaintiffs to be removed because of mandatory

retirement from the payroll of judges and from

causing others to be placed on that payroll in

their stead.

As to the Defendant Secretary of State Dixon,

mandatorily enjoining him to timely certify to

the State Board of Elections and all appro-

priate election officials for inclusion on the ju-

dicial retention ballots in November of 1978

and subsequent years all judges who timely

file Declarations of Candidacy with said De-

fendant pursuant to the 1970 Constitution of

Illinois, and without regard to the said Act for

compulsory retirement of judges and without

regard to the filing date provided in Publi

Act 80-1057. ee

C. For such other relief as may be }j i

; just and equi-

table in the premises, and for their costs. :

COUNT II

gnu ts Court has pendent jurisdiction of this