motion to dismiss — Beer v. Austin

J

Supreme Court, U. 5,

FILED

No. 79-2066 JUL 281980

IN THE SUPREME COURT

OF THE UNITED STATES WOOL RODAK. JR, CLERK

October Term, 1979

THE HONORABLE WILLIAM JOHN BEER, THOMAS |

PLUNKETT, BARRY YAKER, FRANCES R. AVADENKA,

and WARREN NEWTON,

Appellants,

vs.

RICHARD AUSTIN, SECRETARY OF STATE OF THE

STATE OF MICHIGAN; OAKLAND COUNTY BOARD

OF ELECTION COMMISSIONERS and THE HONOR-

ABLE NORMAN R. BARNARD, LYNN D. ALLEN, and

C. HUGH DOHANEY, as Members thereof; MICHIGAN

STATE BOARD OF CANVASSERS and BERNARD J.

APOL, NANCY CHASE, JESSIE M. DILLARD, WALTER

OLIVER, and WALLACE D. RILEY, as Members thereof;

THE OAKLAND COUNTY BOARD OF CANVASSERS

and BARBARA A. BRINKER, SARAH C. DICKSON,

SANDRA KOKOTOVICH, PATRICIA A. SANDERSON,

and LYNN D. ALLEN, as Members thereof; and BERNARD

J. APOL, as Director, BOARD OF ELECTIONS,

Appellees.

On Appeal from the Supreme Court of the

State of Michigan.

MOTION TO DISMISS OR AFFIRM

FRANK J. KELLEY

Attorney General

State of Michigan

Robert A. Derengoski

Solicitor Gener

Jann Ryan Baugh

Assistant Attorney General

Haywood W. Julian

Assistant Attorney General

Attorneys for Appellees

Business Address:

650 Law Building

525 W. Ottawa Street

Lansing, Michigan 48913

Telephone: (517) 373-6434

PRINTED BY SPEAKER-HINES AND THOMAS, INC., LANSING, MICHIGAN—1980

Sa

QUESTIONS PRESENTED

I.

WHETHER THERE IS A LEGITIMATE STATE INTEREST

IN MAINTAINING THE STANDARDS ARTICULATED

IN ARTICLE 6, § 19, OF THE 1963 MICHIGAN CON.-

STITUTION, FOR MEMBERS OF THE STATE JU-

DICIARY.

Il.

WHETHER SUCH STANDARDS WHICH PROHIBIT AP-

POINTMENT OR ELECTION TO THE JUDICIARY

AFTER 70 YEARS OF AGE ARE VIOLATIVE OF EITHER

DUE PROCESS OR EQUAL PROTECTION.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............ 6 cece eens i

INDEX OF AUTHORITIES ............ccceceeeuees iii

JUDGMENT BELOW .......... 6. eee 2

JURISDICTION ....cscccvecccscccenvevvvveveevenns 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

SEV UMETUNEE. vhs wees Cebeesbdsd-eeudenes) tagaeeres 3

STATEMENT OF THE CASE ............ccceeeeeees 4

THE QUESTIONS PRESENTED ARE

INSUBSTANTIAL

I. THERE IS A LEGITIMATE STATE INTEREST

IN MAINTAINING THE STANDARDS ARTICU-

LATED IN ARTICLE 6, § 19, OF THE MICHI-

GAN CONSTITUTION FOR MEMBERS OF THE

SEAT PURGE vices vscrrcteccpautesanes 5

Il. STANDARDS WHICH PROHIBIT APPOINT-

MENT OR ELECTION TO THE JUDICIARY

AFTER 70 YEARS OF AGE DO NOT VIOLATE

DUE PROCESS OR EQUAL PROTECTION .... 9

PEEP ETT TETUT ERT ST: Or Tee ee 20

iii

INDEX OF AUTHORITIES

Cases Page

Armstrong v Howell, 371 F Supp 48 (DC Neb, 1974) .... 11

Aronstam v Cashman, 325 A2d 361 (Vt, 1974) .......... 7

Cleveland Board of Education v LaFleur, 414 US 632;

74 S Ct 791; 31 L Ed 2d 52 (1974) oo... cece ee eee es 13, 14

Lewis v Tucson School District No 1, 23 Ariz App 154;

OE Ee Be SUD io esac x cecavaccncpeeeechs sees 11

Malmed v Thornburg, .... F2d .... (CA 3, 1980),

Docket No. 79-2467; 48 LW 2767 ( May 27, 1980) . .17, 18, 19

Manson v Edwards, 482 F Supp 1076 (CA 6, 1973) ...... 10

Massachusetts Board of Retirement v Murgia, 427 US 307;

96 S Ct 2562; 49 L Ed 2d 520 (1976) ............ 10, 11

Mcllvaine v Pennsylvania State Police, 6 Pa Common-

wealth 505 296 A2d 630 (1972), aff'd, 454 Pa 129; 309

A2d 801 (1973), app dism’d, 415 US 986; 94 S Ct 1583;

SD Eh, Te Be GOS CG) is oo hoissig ss ces eesvesneenens 16, 17

Miller v Carter, 547 F2d 1314, 1316-1319 (CA 7, 1977),

aff'd, 434 US 356; 98 S Ct 786; 54 L Ed 2d 603 (1978) .. 15

Naudzius v Lahr, 253 Mich 216, 222, 223; 243 NW 583

CME. cs xc ee ee 10

Palmer v Ticcione, 576 F2d 459 (1978), cert den, 440 US

954; 99 S Ct 1421; 59 L Ed 2d 633 (1979) ............ 17

Retail Clerks U, Local 770 v Retail Clerks Int Ass’n, 359

F Supp 1285 (CD Calif, 1973) ..............ee cues ll

iv

Page

Rubino v Ghezzi, 512 F2d 431, 433 (CA 2, 1975),

cert dem, 483 US GOA (1G7E) ... wc cccccccccccccce 9,17

Stanley v Illinois, 405 US 645; 92 S Ct 1208; 31 L Ed 2d

SRD RU Cada bide ps nhae chen Cece weece one 13, 14

Talbot v Pyke, 533 F2d 331 (CA 6, 1976) ............ 15

Trafelet v Thompson, 594 F2d 623 (CA 7, 1979), cert den,

.... US....; 100 S Ct 219; 62 L Ed 2d 142 (1975) ..11, 12,

13, 14, 15, 16

Vlandis v Kline, 412 US 441; 93 S Ct 2230; 37 L Ed 2d 63

ORE IES STR EICEING Sa ey le 13

Weber v AETNA Casualty and Surety Co, 405 US 164;

92 S Ct 1400; 31 L Ed 2d 768 (1972) .............06. 8

Weinberger v Salfi, 422 US 749; 95 S Ct 2457; 45 L Ed 2d

Ls poco UiUG wah aidece séakens 13, 14, 15

Weisbrod v Lynn, 383 F Supp 933 (DC DC, 1974), affg,

420 US 940; 95 S Ct 1319; 43 L Ed 2d 420 (1975), reh

den, 423 US 886; 96 S Ct 162; 46 L Ed 2d 118

SE a bac cebuhn don SCOREOUR AS bbe eadeeneta 11, 16,17

Statutes Cited

DOCLA REBATE: BEBA GREER oni. ccc ccc ccccccccess 3

MCLA 168.413a; MSA 6.1413(a) ..............0 0 cee. 3,4

Miscellaneous

sn os etc ckhcxegesedinans see's 5,6

Ee ee ae ew cudebatbeksbadenes 6

1 Official Record, Constitutional Convention 1961, p 1501 7

1 Official Record, Constitutional Convention 1961, p 1482 7

No. 79-2066

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1979

THE HONORABLE WILLIAM JOHN BEER, THOMAS

PLUNKETT, BARRY YAKER, FRANCES R. AVADENKA,

and WARREN NEWTON,

Appellants,

vs.

RICHARD AUSTIN, SECRETARY OF STATE OF THE

STATE OF MICHIGAN; OAKLAND COUNTY BOARD

OF ELECTION COMMISSIONERS and THE HONOR-

ABLE NORMAN R. BARNARD, LYNN D. ALLEN, and

C. HUGH DOHANEY, as Members thereof; MICHIGAN

STATE BOARD OF CANVASSERS and BERNARD J.

APOL, NANCY CHASE, JESSIE M. DILLARD, WALTER

OLIVER, and WALLACE D. RILEY, as Members thereof;

THE OAKLAND COUNTY BOARD OF CANVASSERS

and BARBARA A. BRINKER, SARAH C. DICKSON,

SANDRA KOKOTOVICH, PATRICIA A. SANDERSON,

and LYNN D. ALLEN, as Members thereof; and BERNARD

J. APOL, as Director, BOARD OF ELECTIONS,

Appellees.

On Appeal from the Supreme Court of the

State of Michigan.

MOTION TO DISMISS OR AFFIRM

The Appellees, pursuant to Rule 16 of the Rules of the

Supreme Court of the United States, respectfully move the

Court to dismiss the appeal herein or, in the alternative, to

—

affirm the final judgment and decree of the Supreme Court of

the State of Michigan on the ground that it is manifest that

the questions on which the decision of the cause depends are

so insubstantial as to warrant no further argument.

JUDGMENT BELOW

This lawsuit originated as a Mandamus action in the Michi-

gan Court of Appeals. The Complaint for Mandamus was dis-

missed on May 9, 1980, and an Application for Leave to Appeal

was filed in the Michigan Supreme Court. That Application

' was denied on June 19, 1980.

In effect, the Supreme Court of the State of Michigan up-

held the validity of Article 6, § 19, of the Constitution of

Michigan (1963), which provides that no person may be

elected or appointed to a judicial office after reaching the age

of 70 years. Both orders are attached to the Jurisdictional

Statement.

JURISDICTION

A mandamus action was initiated in the Michigan Court of

Appeals pursuant to 1963 Michigan General Court Rule 714

alleging that the due process and equal protection clauses of

the United States Constitution would be violated if a judge

were prohibited from seeking reelection because he had at-

tained the age of seventy. The candidate argued that Article

6, § 19 of the 1963 Michigan Constitution and the enabling

statutes should not be enforced.

The candidate was not successful and filed an Application

for Leave to Appeal to the Michigan Supreme Court pursuant

to 1963 Michigan General Court Rule 853. Leave to Appeal

was denied,

onillind

A Jurisdictional Statement was filed in this Court on June

28, 1980. Jurisdiction was predicated on 28 USC 1275(2),.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Michigan Constitution (1963), Article 6, § 19, provides:

“The supreme court, the court of appeals, the circuit

court, the probate court and other courts designated as

such by the legislature shall be courts of record and each

shall have a common seal. Justices and judges of courts

of record must be persons who are licensed to practice law

in this state. No person shall be elected or appointed to

a judicial office after reaching the age of 70 years.”

MCLA 168.411; MSA 6.1411 provides:

“No person shall be eligible to the office of judge of the

circuit court who is not a qualified elector of the judicial

circuit in which election is sought, as provided in section

11 of article 6 of the state constitution, who is not licensed

to practice law in this state and who at the time of elec-

tion is 70 years of age or older.”

MCLA 168.413a; MSA 6.1413(1) provides:

“Any incumbent circuit court judge may become a

candidate in the primary election for the office of which

he is an incumbent by filing with the secretary of state

an affidavit of candidacy not less than 120 days prior to

the date of the primary election.

“The affidavit of candidacy shall contain statements

that the affiant is an incumbent circuit court judge for

the circuit in which election is sought, that he is domi-

ciled within the circuit, that he will not attain the age

sil.

of 70 by the date of election and a declaration that he

is a candidate for election to the office of circuit court

judge.”

STATEMENT OF THE CASE

Appellant, William J. Beer, is a circuit judge in Oakland

County, Michigan. Appellant Beer was first elected to that

position in April, 1959 and has continually served until the

present time. Judge Beer was last elected in November, 1974,

to serve a six year term which will expire on December 31,

1980.

Appellant Beer attained 70 years of age on February 17,

1979. However, despite the state constitution and statutes,

he sought to file affidavits as a candidate for reelection.

The Elections Division of the Michigan Department of State

refused to accept the affidavits and notified Appellant Beer

that he was prohibited from seeking reelection pursuant to

Michigan Constitution 1963.

In consequence thereof an action for mandamus was brought

in the Michigan Court of Appeals seeking to compel the state

to place Appellant Beer’s name on the ballot in the upcoming

primary and general elections. The individual voter appellants

in the original action alleged that the qualifications imposed

upon the putative candidate violated their constitutional right

to vote for the candidate of their choice.

On May 9, 1980, the Michigan Court of Appeals denied

Appellant’s Motion for an Order to Show Cause, specifically

found a lack of merit in the grounds presented, and ordered

that the complaint for mandamus be dismissed. A copy of the

Court of Appeals order is contained in the appendix to Ap-

pellant’s Jurisdictional Statement.

_

An appeal from that order was taken to the Supreme Court

of the State of Michigan, and on June 19, 1980, the Supreme

Court issued its order denying the Application for Leave to

Appeal on the grounds that the court was not persuaded that

the questions presented should be reviewed. A copy of the

Supreme Court order is also contained in the appendix to

Appellant's Jurisdictional Statement.

From that order of the Michigan Supreme Court, Appellants

seek to have this Court note probable jurisdiction over the ap-

peal, permit the filing of briefs, and set the matter for oral

arguments.

THE QUESTIONS PRESENTED ARE INSUBSTANTIAL

1

THERE IS A LEGITIMATE STATE INTEREST IN MAIN-

TAINING THE STANDARDS ARTICULATED IN ARTI-

CLE 6, § 19, OF THE MICHIGAN CONSTITUTION FOR

MEMBERS OF THE STATE JUDICIARY.

In 1955, the Michigan Senate and House of Representatives

proposed an amendment to Const 1908, art 7, § 17. The

amendment was presented to the electorate in the form of

1955 PA J.R. 2, and added the following sentence to art 7,

§ 17, supra:

“Justices of the supreme court and judges of all circuit

courts in this state elected or appointed after July 1, 1955,

shall at the time of such election or appointment be under

70 years of age and licensed to practice law in this state.”

The amendment was ratified by the people on April 4, 1955,

and, thus, became a part of the Michigan Constitution. The

a Oe

people, by direct vote, expressed approval of the dual qualifica-

tions of being licensed to practice law and being less than 70

years of age as reasonable and desirable standards for state

judicial officers.

At the Constitutional Convention of 1961, many of the pro-

visions of Const 1908, art 7, § 17 were simply retained in

the new document and specifically the maximum age limita-

tion was again embodied as part of Const 1963, art 6, § 19.

The same qualifications were approved by the delegates to

the Constitutional Convention of 1961. A study of the Official

Record of the Convention reveals that although much debate

was held on the question of requiring a license to practice law

as a qualification for holding judicial office, there was very

little discussion of the maximum age qualification.

It is important to note that although there is a paucity of

language on the topic, that surely should not be taken as a

lack of concern for the age requirement. The record shov’s

that the Committee on the Judiciary proposed to the Conven-

tion that the language “shall not” be stricken from the sentence

and the words “no person shall” inserted so that the sentence

would read, “and no person shall be elected or appointed to a

judicial office after reaching the age of 70 years.”

In making that proposed amendment, which was adopted

by the Constitution, Delegate Danhof stated:

“

...—Mr. Ford, the Vice-Chairman of my committee,

and myself offer this amendment so as to make sure that

the 70 year age requirement is maintained within the con-

stitution.

* ° °

“Mr. Rajkovich [delegate] stated it was not their inten-

tion to disturb this [age limit] .. .”

jak. Bea

1 Official Record, Constitutional Convention 1961, p

1501

The legitimate state interest which the delegates were seek-

ing to advance was an effective and efficient judicial system.

The words of Delegate Everett explain their concerns in a most

cogent fashion:

“Let me say this. I would not suggest for a moment—

and I don’t think anybody here would suggest—that the

framework is the total answer. Because a good system can

produce bad judges, and a bad system can produce good

judges. But, in the final analysis, the system if it is sound

is much more likely to provide a good judiciary and a good

judicial system for the people of the state than a bad one

1S.

1 Official Record, Constitutional Convention 1961, p

1482

By adopting the proposed Constitution in 1963, the voters

directly approved for the second time the mandatory retire-

ment age for judges.

In Aronstam v Cashman, 325 A2d 361 (Vt, 1974), the very

same questions raised in this case were presented to the Ver-

mont Supreme Court. There two assistant judges, and several

of their constituents who stated that they would vote for the

assistant judges if they were candidates, brought suit to compel

certain county clerks to accept their nominating petitions for

reelection. The clerks had refused because both judges were

over 70 years of age and Vermont had a mandatory retirement

age of 70 years.

The Court held that the mandatory retirement age of 70

years for assistant judges promoted the legitimate state interest

of imposing the highest possible standards for the judiciary

afin

and did not violate the plaintiffs’ rights to equal protection of

the law.

In reaching their conclusion, the Vermont Supreme Court

was guided by the dual essential inquiry test outlined by Justice

Powell in Weber vy AETNA Casualty and Surety Co, 406 US

164; 92 S Ct 1400; 31 L Ed 2d 768 (1972):

1. What legitimate state interest does the classification

promote?

2. What fundamental personal rights might the clas-

sification endanger?

The people of the State of Michigan, like the citizens of

Vermont, have a legitimate state interest in requiring the

highest possible standards for members of the judiciary by

minimizing, as far as possible, the threat of an obviously dis-

abled judge continuing to preside. In attempting to promote

and further that interest, the people amended one Constitution

to include the 70 year maximum age qualification for a judge

and approved a subsequent Constitution containing the same

proviso.

In addition, this is not the sole method utilized to insure

that the highest possible standards are required of the Michi-

gan judiciary. See, for example, the Michigan Code of Judicial

Conduct which was adopted by the Michigan Supreme Court

on October 1, 1974. The various canons of the Code of Judicial

Conduct require that judges should, for instance, refrain from

political activity which is inappropriate to their judicial office;

regulate extrajudicial activities to minimize the risk of any con-

flict with judicial duties; and avoid appearances of impropriety

in all activities.

The United States Court of Appeals for the Second Circuit

was faced with the same question regarding the state’s interest

ver

in imposing age restrictions upon New York state judges. The

Court determined that such restrictions were a matter for the

legislative process of the state and held:

“We do not deem age to be a suspect classification re-

quiring any strict scrutiny of the state’s scheme of age

restrictions upon judicial terms of office. . . . It would

appear that without question the state could rationally

determine that, in the interests of judicial efficiency and

the encouragement of younger attorneys with judicial

aspirations, a mandatory age limitation of 70 for inferior

court judges was reasonable.” (emphasis added)

Rubino v Ghezzi, 512 F2d 431, 433 (CA 2, 1975), cert

den, 423 US 891 (1975)

The weight of authority has established that mandatory age

requirements for judicial officers meet many legitimate and

valid state interests, and there is a rational relationship between

a maximum age as one qualification for judicial office and the

end sought to be accomplished.

Il.

STANDARDS WHICH PROHIBIT APPOINTMENT OR

ELECTION TO THE JUDICIARY AFTER 70 YEARS OF

AGE DO NOT VIOLATE DUE PROCESS OR EQUAL

PROTECTION.

This Court has developed a two-tiered approach to equal

protection cases. If the interest is deemed to be “fundamental”

or if the classification is “suspect,” the Court will apply a

“strict scrutiny” test which requires that the state display a

“compelling interest” to support or justify the classification.

Other legislative and constitutional provisions are subject to

on

review under the traditional equal protection test which re-

quires only a showing of a “rational relationship” between the

legislation and the end to be accomplished.

Since age is not a “suspect classification,” Manson v Edwards,

482 F2d 1076 (CA 6, 1973), the “strict scrutiny” test is not

applicable and the state is not required to show a “compelling

interest” which justifies the classification. Rather, the con-

stitutional provision setting the 70 year maximum age is subject

only to the rational relationship test.

The traditional equal protection test in Michigan is set forth

in Naudzius v Lahr, 253 Mich 216, 222, 223; 234 NW 581, 583

(1931), as follows:

“1, The equal protection clause of the Fourteenth

Amendment does not take from the State the power to

classify in the adoption of police laws, but admits of 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 con-

ceived 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.’ Lindsley v

Natural Carbonic Gas Co., 220 US 61, 78; 31 S Ct 337,

340; 55 L Ed 369, 377 (1911).” (emphasis added )

In Massachusetts Board of Retirement v Murgia, 427 US

307; 96 S Ct 2562; 49 L Ed 2d 520 (1976), this Court in a

pe ae

per curiam opinion upheld the constitutionality of a Massachu-

setts statute which provided that members of the uniformed

state police would be mandatorily retired at age 50. This Court

found that the rational basis test was the proper standard by

which the statute should be tested.

“This Court’s decisions give no support to the proposi-

tion that a right of governmental employment per se is

fundamental. . . . Accordingly, we have expressly stated

that a standard less than strict scrutiny has consistently

been applied to state legislation restricting the ability of

employment opportunities.” (emphasis added )

Massachusetts Board of Retirement v Murgia, supra,

427 US at 313; 96 S Ct at 2566; 49 L Ed 2d at 524

Federal courts have uniformly upheld mandatory retirement

statutes and constitutional provisions, see Retail Clerks U,

Local 770 v Retail Clerks Int Ass'n, 359 F Supp 1285 (CD

Calif, 1973); Lewis v Tucson School District No 1, 23 Ariz

App 154; 531 P2d 199 (1975); Armstrong v Howell, 371 F

Supp 48 (DC Neb, 1974); Weisbrod v Lynn, 383 F Supp 933

(DC DC, 1974), aff'g, 420 US 940; 95 S Ct 1319; 43 L Ed 2d

420 (1975), reh den, 423 US 886; 96 S Ct 162; 46 L Ed 2d 118

(1975).

As recently as March, 1979, the United States Court of Ap-

peals for the Seventh Circuit considered the question presented

in this case. A judge facing a 70 year mandatory retirement age,

along with several voter plaintiffs who claimed a denial of

their right to vote for the candidate of their choice, brought

suit to have the statute declared unconstitutional. In Trafelet

v Thompson, 594 F2d 623, 627 (CA 7, 1979), cert den,.... US

... 3 100 S Ct 219; 62 L Ed 2d 142 (1975), the Court said:

“The equal protection clause does not prohibit the

legislature from adopting a more rigorous policy for assur-

cali cn

ing excellence in the judiciary than for other elective

offices. As the Supreme Court said of the Foreign Service

in Vance v. Bradley, supra, .... U. S, at ...., 99 S.Ct.

at 956.

““The judgment that the Foreign Service needs such a

system more than do many other departments is one of

policy, and this kind of policy, under our constitutional

system, ordinarily is to be “fixed only by the people act-

ing through their elected representatives.” ’

“Citing Fireman v. Chicago, R.I. & P.R. Co., 393 U.S.

129, 138, 89 S.Ct. 323, 21 L.Ed.2d 289 (1968).”

After further discussion of the merits of the case, the Trafelet

Court detailed some of the authority supporting mandatory

retirement ages:

“Our conclusion that mandatory retirement for judges

at age 70 does not violate the equal protection clause is

supported by the case law involving mandatory retire-

ment of various kinds of governmental officers and em-

ployees. Vance v. Bradley, supra, .... U.S. ...., 99 S.Ct.

939, 59 L.Ed.2d 171; Massachusetts Board of Retirement

v. Murgia, supra, 427 U.S. 397, 96 S.Ct. 2562, 49 L.Ed.2d

520; Rubino v. Ghezzi, 5)2 F.2d 431 (2d Cir.), cert.

denied, 423 U.S, 891 96 S.Ct. 187, 46 L.Ed.2d 122 (1975);

Palmer v. Ticcione, 576 F.2d 459 (2d Cir. 1978), cert.

denied, .... U.S. ...., 99 S.Ct. 1421, 59 L.Ed.2d 633

(1971); Johnson v. Lefkowitz, 566 F.2d 866 (2d Cir. 1977);

Weisbrod v. Lynn, 383 F.Supp. 933 (D.D.C. 1974), aff'd

summarily, 420 U.S. 940, 95 S.Ct. 1319, 43 L.Ed.2d 420

(1975); McIlvaine v. Pennsylvania State Police, 454 Pa.

219, 309 A.2d 801 (1973), appeal dismissed for want of

substantial federal question, 415 U.S, 986, 94 S.Ct. 1583,

39 L.Ed.2d 884 (1974).”

atic

Trafelet, supra, 629

The Court of Appeals then reached the following decision

regarding the claimed equal protection violation:

“Having concluded that the classification adopted by

the legislature is not suspect, does not impair fundamental

rights, and is rationally related to a legitimate state pur-

pose, and therefore satisfies the requirements of equal

protection, we cannot find it unconstitutional as creating

an irrebuttable presumption.”

Trafelet, supra, p 630

Appellants have not met the burden of proving that Michi-

gan does not have a legitimate interest in requiring the stand-

ards set forth in the State Constitution for judicial officers.

Appellant Beer bases his due process claim on the “irrebut-

table presumption doctrine,” which was developed in a series

of cases, Stanley v Illinois, 405 US 645; 92 S Ct 1208; 31 L

Ed 2d 551 (1972); Vlandis v Kline, 412 US 441; 93 S Ct 2230;

37 L Ed 2d 63 (1973); and Cleveland Board of Education v

LaFleur, 414 US 632; 74 S Ct 791; 31 L Ed 2d 52 (1974).

While the validity of the doctrine is not questioned here, the

scope of the doctrine and its application to a mandatory retire-

ment age is questioned.

In Weinberger v Salfi, 422 US 749; 95 S Ct 2457; 45 L Ed

2d 522 (1975), this Court limited the doctrine by holding

that the provisions of the Social Security Act precluding a

wage earner’s widow and stepchild from receiving social security

benefits if there had not been a continuing relationship for

9 months prior to the wage earner’s death was not an irrebut-

table presumption.

This Court found that the rights involved in the trilogy of

cases, Stanley-LaFleur-Vlandis, supra, were so fundamental

ae

that any restrictions upon these rights would violate due

process. Weinberger, supra, pp 771-773. In contrast, it was

held in Weinberger that there was a “noncontractual claim to

receive funds from the public treasury which enjoys no con-

stitutionally protected status.” Weinberger, supra, p 772.

\

The doctrine of irrebuttable presumption is limited by Wein- \

berger, supra, to presumptions dealing with fundamental rights |

such as the right to conceive and raise children, Stanley, supra, |

and the right of freedom of choice in matters of marriage and

family life, LaFleur, supra.

The rights involved in this lawsuit, the right to judicial and

elected office, are not fundamental. In Trafelet v Thompson,

supra, the Seventh Circuit Court of Appeals stated:

“Neither the right of governmental employment, Mas-

sachusetts Board of Retirement v. Murgia, 427 U.S. 307,

313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), nor the right

to run for elective office, Bullock v. Carter, 405 U.S. 134,

142-143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), is funda-

mental, See J. Nowak, R. Rotunda, and J. N. Young, Hand-

book on Constitutional Law 686 and 643 (1978) and L.

Tribe, American Constitutional Law, § 13-19 at 775-777

(1978). Judicial office is no exception. Napolitano v.

Ward, 457 F.2d 279, 284 (7th Cir. 1972), cert. denied,

409 U.S. 1037, 92 S.Ct. 512, 34 L.Ed.2d 486 (1973).”

Therefore, the use of the doctrine of irrebuttable presump-

tion would be inappropriate in this case because the rights

involved are not fundamental.

Although this Court has not ruled directly on the subject of

irrebuttable presumption as it relates to mandatory retirement,

several federal cases have consistently decided the very same

issue.

_

The United States Court of Appeals for the Sixth Circuit

in Talbot v Pyke, 533 F2d 331, 333 (CA 6, 1976), dismissed

the argument that a municipal park district’s policy of manda-

tory retirement at age 70 denied the plaintiff due process be-

cause of an irrebuttable presumption based upon age. Citing

Weinberger, supra, as authority, the Court stated that the

doctrine was not applicable.

In Trafelet, supra, the Seventh Circuit Court of Appeals

stated that the doctrine did not apply in the mandatory retire-

ment scheme involved. Expressing concern with the validity of

the doctrine coupled with the difficulty ,of application in an

earlier opinion, Miller v Carter, 547 F2d 1314, 1316-1319 (CA

7, 1977), aff'd, 434 US 356; 98 S Ct 786; 54 L Ed 2d 603

(1978), the Court stated in Trafelet, supra:

“. . . Since our decision in Miller, the Supreme Court

has not relied upon the doctrine in any case, although the

Court has had several opportunities to do so. Vance v.

Bradley, supra, is the second mandatory retirement deci-

sion in which the Supreme Court has not referred to the

irrebuttable presumption doctrine; even Justice Marshall,

the lone dissenter, although specifically pointing out that

the district court judgment invalidating the statute which

the Court was reviewing could be sustained on any ground

finding support in the record, did not mention the irrebut-

table presumption doctrine. See also Friedman v. Rogers,

.... US. ...., .... 8, 99 S.Ct. 887, 893, 59 L.Ed.2d

100, 108 (1979); First National Bank v. Bellotti, 435 U.S.

765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); Ohio Bureau

of Employment Services v. Hodory, 431 U.S. 471, 490

N.18, 97 S.Ct. 1898, 52 L.Ed. 2d 513 (1977); Fiallo v.

Bell, 430 U.S. 787, 791, 97 S.Ct. 1473, 52 L.Ed.2d 50

(1977); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1,

22-24, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), Cf. Elkins v.

Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614

oe ae

(1978). See DeLaurier v. San Diego Unified School Dis-

trict, 588 F.2d 674 at 682-683 n.16 (9th Cir. 1978).”

Trafelet, supra, p 629

The Trafelet Court then dismissed the irrebuttable presump-

tion based upon equal protection language.

In Weisbrod v Lynn, supra, the Court dismissed a suit by a

federal employee claiming that 5 USC 8335 was unconstitu-

tional because it mandated retirement at age 70. In dismissing

the suit, the Court took particular note of McIlvaine v Penn-

sylvania State Police, 6 Pa Commonwealth 505; 296 A2d 630

(1972), affd 454 Pa 219; 309 A2d 801 (1973), app dismd, 415

US 986; 94 S Ct 1583; 39 L Ed 2d 884 (1974), wherein a case

with identical issues (mandatory retirement at age 60) was

also dismissed for want of a substantial federal question. Most

importantly, the district court noted that the “irrebuttable

presumption argument” was made to, and rejected by, this

Court in Mcllvaine, supra. The district court in Weisbrod,

supra, stated:

“This framing of the basic issue in McIlvaine convinces

this Court that the Supreme Court was certainly not

ignorant of the due process issue before it. Only two months

prior to the McIlvaine decision, Justice Rehnquist had

observed: “‘[T]he Court will have to strain valiantly in

order to avoid having today’s opinion [relying primarily

on the doctrine of irrebuttable presumption] lead to the

invalidation of mandatory retirement statutes for govern-

mental employees. If the remaining Supreme Court

Justices had agreed with Justice Rehnquist’s conclusion,

the Court would not have disposed on McIlvaine on the

grounds that it failed to present a substantial federal ques-

tion.”

Weisbrod, supra, p 937

a, an

In Rubino, supra, the Court of Appeals for the Second

Circuit upheld the constitutionality of mandatory retirement

of state judges at age 70, affirmed an order denying a motion

to convene a three judge district court, and dismissed the com-

plaint. The Court cited Weisbrod, supra, and Mcllvaine, supra,

as a basis for its determination of an insubstantial federal

question and determined that the due process and equal pro-

tection questions were substantially similar, if not identical.

The Second Circuit reaffirmed the holding of Rubino, supra,

in Palmer v Ticcione, 576 F2d 459 (1978), cert den, 440 US

954; 99 S Ct 1421; 59 L Ed 2d 633 (1979), and dismissed a

due process attack on the New York Compulsory Retirement

System as creating an irrebuttable presumption. The Court

stated:

“We reach the same conclusion with regard to the due

process attack on compulsory retirement as establishing

an irrebuttable presumption. That claim is analytically

very similar to the equal protection one. If the statutory

classification is sustainable as rationally based, then it

should not fall because it might also’be labeled a presump-

tion. Moreover, the due process claim was before the

Court in McIlvaine v. Pennsylvania, 415 U.S. 986, 94 S.Ct.

1583, 39 L.Ed.2d 884 (1974), and Weisbrod v. Lynn, 420

U.S. 940, 95 S.Ct. 1319, 43 L.Ed.2d 420 (1975), affg 383

F.Supp. 933 (D.D.C. 1974), and this court in Rubino v.

Ghezzi, 512 F.2d 431 (2d Cir.), cert. denied, 423 U.S. 891,

96 S.Ct. 187, 46 L.Ed.2d 122 (1975). In each case it was

rejected.”

Palmer v Ticcione, supra, pp 463-464

On May 13, 1980, in Malmed v Thornburg, .... F2d .

(CA 3, 1980), Docket No. 79-2467, 48 LW 2767 (May 27,

1980), the United States Court of Appeals for the Third Dis-

strict reversed the finding of a district court that concluded

a

that a constitutionally mandated retirement age for judges

was void as creating an irrebuttable presumption of incom-

petence based on age.

The Court of Appeals remanded the case with directions

to enter judgment in favor of the appellants. Significantly,

the Court stated that the important issue to be decided was:

“, .. Is the mandatory retirement age rationally related

to the accomplishment of any legitimate state objec-

tive?”

Malmed, supra, p 29

" The Court concluded that the constitutionally provided

mandatory judicial retirement at age 70 was rationally related

to a legitimate legislative objective.

“In reviewing a state statute or constitutional provision

under the due process or equal protection clause, a court

must determine if the provision rationally furthers any

legitimate state objective. ‘For these purposes, it is, of

course, constitutionally irrelevant whether this reasoning

in fact underlay the legislative decision . . . .’ Flemming v.

Nestor, 363 U.S. 603, 612 (1960). The court may even

hypothesize the motivations of the state legislature to find

a legitimate objective promoted by the provision under

attack. See Weinberger v. Salfi, 422 U.S. 749, 780 (1975);

Williamson v. Lee Optical Inc., 348 U.S. 483, 487-90

(1955); Trafelet v. Thompson, 594 F.2d 623, 626 (7th

Cir.), cert. denied, .... U.S. ...., 48 U.S.L.W. 3239

(Oct. 1, 1979). The legitimate purpose justifying the pro-

vision need not be the primary purpose of the provision.

McGinnis v. Royster, 410 U.S. 263, 276 (1973) ....”

Malmed, supra, p 7

a,

The Third Circuit found that the lower court had erroneously

placed the burden of proof on the defendants to rebut the

claim of a due process violation and held that the proper ap-

proach is to require the complaining party to show that the

constitutional convention had no reasonable basis for believing

in their reasons for the adoption of the mandatory retirement

provisions.

The irrebuttable presumption argument was also raised in

Malmed:

“Thus, we do not read the irrebuttable presumption

decisions as deviating substantially from the traditional

tests for violations of the due process clause. Because no

suspect class or fundamental interest is implicated in

this case, we must apply the standard as explained in

Weinberger v. Salfi, 422 U.S. at 777:

“[T]he question raised is not whether a statutory pro-

vision precisely filters out those, and only those, who are

in the factual position which generated the congressional

concern reflected in the statute. Such a rule would ban

all prophylatic provisions, and would be directly contrary

to our holding in Mourning [v. Family Publications Serv-

ice, Inc., 411 U.S. 356 (1973)]. Nor is the question

whether the provision filters out a substantial part of the

class which caused congressional concern, or whether it

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

The question is whether Congress, its concern having

been reasonably aroused by the possibility of an abuse

which it legitimately desired to avoid, could rationally

have concluded both that a particular limitation or qualifi-

cation would protect against its occurrence, and that the

expense and other difficulties of individual determina-

tions justified the inherent imprecision of a prophylactic

rule.”

Malmed, supra, p 21

—~20—

The United States Court of Appeals for the Third Circuit

has clearly, concisely, and effectively answered every question

raised by plaintiffs-appellants in this case.

Finally, this Court, by a vote of 8-1, affirmed a three judge

district court’s ruling that upheld the constitutionality of a

mandatory state retirement age of 65 for attorney-hearing

examiners. Slate v Noll, 474 F Supp 882 (WD Wis, 1979),

affd, .... US ....; 100 S Ct 655; 62 L Ed 2d 637 (1980).

The rulings enunciated by the Courts of Appeals in the

Second, Third, Sixth, and Seventh Circuits, as well as the

prior decisions of this Court, conclusively defeat the argument

that either due process or equal protection violations have

occurred.

CONCLUSION

WHEREFORE, Appellees respectfully submit that the Ap-

pellants present no substantial question for the decision of

this Court, and pray that the appeal be dismissed or the judg-

ment of the Michigan Supreme Court be affirmed.

FRANK J. KELLEY

Attorney General

Robert A. Derengoski

Solicitor General

Jann Ryan Baugh

Haywood W. Julian

Assistant Attorneys General

Attorneys for Appellees

Business Address:

650 Law Building

525 West Ottawa Street

Lansing, Michigan 48913

(517) 373-6434

Dated: July 23, 1980