Petition — Malmed v. Thornburgh
Supreme Court brief1980
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IN THE
Supreme Court of the United States
TERM, 1980
EDWIN S. MALMED, STANLEY L. KUBACKI, GREGORY G.
LAGAKOS, JOSEPH T. MURPHY, and JAMES L. STERN,
Petitioners,
vs.
RICHARD L. THORNBURGH, Individually and as Governor of
Pennsylvania, ETHEL D. ALLEN, Individually and as Secretary
of the Commonwealth of Pennsylvania, ROBERT E. CASEY,
Individually and as Treasurer of the Commonwealth of
Pennsylvania, and ALEXANDER F. BARBIERI,
Individually and as Pennsylvania Court Administrator,
Respondents.
PETITION FOR A Wrir oF CERTIORARI TO THE
UNITED STATES Court OF APPEALS FOR THE
Tuirp Crmculr
PETITION FOR A WRIT OF CERTIORARI
STEPHEN M. FELDMAN,
JEFFREY S. ROSENBLUM,
Counsel for Petitioners,
FELDMAN & FELDMAN, P.A.,
1715 Rittenhouse Square,
Philadelphia, Pennsylvania 19103
(215) 546-2604
September 3, 1980
—
—
Pennsylvania Appellate Printing Co.—Call Toll Free—i(800) 526-7560
QUESTIONS PRESENTED
1. Whether the federal constitutional guarantee of equal
protection is violated by a system of state laws which,
while ostensibly mandating the retirement of judges at age
70, actually permits all judges to continue to serve beyond
70, performing work which, because of a shortage of judges,
is essential to the operation of the judicial system but pays
such judges substantially less salary for the same work
than judges under 70?
2. Whether the federal constitutional guarantee of due
process is violated by a system of state laws which creates
an irrebutable presumption that judges reaching the age
of 70 become unfit to serve as judges where there are rea-
sonable alternative means for determining fitness and
where the system does not in fact involuntarily remove
any judge from the bench at 70, but simply reduces him to
an inferior pay status, while making full use of his judicial
services?
ii
TABLE OF CONTENTS
I Ne er Vibe ded oe eek OS avs
Te 4 os way einai beds 04 5 ae kes
ets ek Pe alas Vick Coby 4.9 sou vis daa cs
Constitutional Provisions, Statutes, and Rules of Court
PC eee Me gh ee to Ae
REASONS FOR GRANTING THE WRIT:
1. The decision below is in conflict with the spirit of
this Court’s recent decisions concerning the con-
stitutionality, on the grounds of equal protection,
of mandatory retirement systems and contrary to
the principles enunciated therein ..............
2. The Court below erred in reducing the entire
argument of Petitioners, and the holding of the
District Court, with respect to equal protection,
to a single inaccurate footnote while using the bulk
of its opinion to deal with an issue which it
created and which was neither argued by the Peti-
tioners nor relied on by the District Court ......
3. The Court below erred in not following the deci-
sion of this Court in Cleveland Board of Educa-
tion v. LaFleur with respect to Plaintiffs’ Due Proc-
ee eee eee er er er
4, The decision below is incorrect with respect to its
review of the District Court's Equal Protection and
Due Process analysis, and with respect to its own
substituted analysis thereof ...................
9
12
15
2 Se
iii
TABLE OF CONTENTS
REASONS FOR GRANTING THE WRIT:
5. The decision below raises important constitutional
issues of substantial public concern ............. 22
SNES GB PRIS ed ope RS es NE SD ETA 25
Cases CITED:
Board of Regents v. Roth,
408 U.S. 564, 92 S. Ct. 2701,
Be Re IT COUT 5 oot eh ics pea daees 19
Carrington v. Rash,
380 U.S. 89, 85 S. Ct. 775,
151 BAS0 O75. (1008) 555 oss ia chee icans 16
Cleveland Board of Education v. LaFleur,
414 U.S. 632, 94 S. Ct. 791,
a? a ee ee 15
Heiner v. Donan,
385 U.S. 312, 52 S. Ct. 358,
TE ees cas bee dese aivd oo 16
Massachusetts Board of Retirement v. Murgia,
427 U.S. 307, 96 S. Ct. 2562,
Late Gee L1G) os... ie et liae. 9, 23
San Antonio Independent School District v. Rodriguez,
411 U.S. 1, 93S. Ct. 1278, 36 L.Ed.2d 16 (1973) .. 10
Schlesinger v. Wisconsin,
270 U.S. 230, 46 S. Ct. 260,
WS AMERY (20GB 2 boo sa dew seas 16
Stanley v. Illinois,
405 U.S. 645, 92 S. Ct. 1208,
SE I Sick ss cs Sheek Fee eR ds 16
iv
TABLE OF CONTENTS
Cases CIrepD:
Trafelet v. Thompson,
594 F.2d 623 (7th Cir. 1979), cert. denied,
U.S. —, 100 S. Ct. 219, 62 L.Ed.2d 142 (1979) .. 14
Truax v. Raich,
239 U.S. 33, 36 S. Ct. 7,
eee te tte) esol. 19
U.S. Dept. of Agriculture v. Murry,
413 U.S. 508, 93 S. Ct. 2832,
ST L.BaGd WIIOTS) .......... cece ccc ceee. 15
Vance v. Bradley,
440 U.S. 93, 99 S. Ct. 939,
59 L.Ed.2d 171 (1979) .........0..-.. eee. 9, 23
Vlandis v. Kline,
412 U.S. 441, 93 S. Ct. 2230,
37 L.Ed.2d 63 (1973) ...........ecceceeees 15, 17
Weinberger v. Salfi,
422 U.S. 749, 95 S. Ct. 2457,
45 L.Ed.2d 522 (1975) ... 0.0... c cece eee eeeees 18
Willner v. Committee on Character and Fitness,
373 U.S. 96, 83 S. Ct. 1175,
er ek cas cow eh adea vie’ 19
CONSTITUTIONAL PROVISIONS, STATUTES, AND
RuLEs OF Court CITep:
U.S. Const., amend. XIV, Section 1 ...... 2, 4, 8, 9, 19, 23
ee ee iw, Gukee deew es 15
Pa. Const., art. V, §16(b) ..............0. 3, 4, 8, 17, 21
TABLE OF CONTENTS
CONSTITUTIONAL PROVISIONS, STATUTES, AND
Ru.Les or Court CIrep:
s,s 2g ck vt bau euw eee 3, 5
es a ace. a ca sie'u'v cals m nets 3
i A IN n'ai sn 6 news os Suen cnsuegen 3
Act of August 31, 1966, P.L. 47 §§1 et seq.,
17 P.S., §§790.101, et seq. (Supp.) ............ 3
RS or a 2 dicaey <aahs ethene tens 3
SP ED. on a se does viene oo une taeda 2
ES Nn a cca decneacs deine eueueeeen 4
Pe UIA, CGD oo ccc cccccncecccencwnegn 4
MISCELLANEOUS AUTHORITIES CITED:
2 Journal of the Const. Conv. 1078-79 (1967-8) ..... 21
Reference Manual Number 5 to the Pennsylvania
Constitutional Convention of 1967-68 ........ 20-21
APPENDIX
SE SPPPOSTSTITeCrererre yc ress la
DEE pf a.a om or ce ewe cas se eescveness sehen 27a
rere reer reyes 65a
EEE hs parce hi asesene saveqiced cenene 67a
8 STE Tc 68a
ETT eTe TT eee eee 70a
kL, SEE ere rere re 71a
IN THE
SUPREME COURT OF THE UNITED STATES
TERM, 1980
No.
EDWIN S. MALMED, STANLEY L. KUBACKI,
GREGORY G. LAGAKOS, JOSEPH T. MURPHY,
and JAMES L. STERN,
Petitioners
RICHARD L. THORNBURGH, Individually and as
Governor of Pennsylvania, ETHEL D. ALLEN,
Individually and as Secretary of the
Commonwealth of Pennsylvania, ROBERT E. CASEY,
Individually and as Treasurer of the Commonwealth
of Pennsylvania, and ALEXANDER F. BARBIERI,
Individually and as Pennsylvania Court Administrator,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
The petitioners above named respectfully pray that a
Writ of Certiorari issue to review the judgment and opinion
of the United States Court of Appeals for the Third Circuit
entered in this proceeding on May 13, 1980, petitioners’
petition for reargument having been denied on June 10,
1980.
2
OPINIONS BELOW
The opinion of the Court of Appeals, not yet reported,
appears in the Appendix hereto. The opinion of the Dis-
trict Court for the Eastern District of Pennsylvania, re-
ported at 478 F. Supp. 998, additionally appears in the
Appendix hereto.
JURISDICTION
The judgment of the Court of Appeals for the Third
Circuit was entered on May 13, 1980. A timely petition
for rehearing before the Court en banc was denied on June
10, 1980, and this petition for certiorari was filed within 90
days of that date. This Court's jurisdiction is invoked un-
der 28 U.S.C. §1254(1).
CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES OF
COURT INVOLVéD
United States Constitution, amend. XIV:
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal pro-
tection of the laws.
7%
Pennsylvania Constitution, Article V, §16(b):
Justices, judges and justices of the peace shall be re-
tired upon attaining the age of seventy years. Former and
retired justices, judges and justices of the peace shall re-
ceive, such compensation as shall be provided by law. No
compensation shall be paid to any justice, judge or justice
of the peace who is suspended or removed from office
under section eighteen of this article or under article six.
Pennsylvania Constitution, Article V, §16(c):
A former or retired justice or judge may, with his con-
sent, be assigned by the Supreme Court to temporary ju-
dicial service as may be prescribed by rule of the Supreme
Court.
Pennsylvania Constitution, Article V, §18
(Reproduced at p. 68a of Appendix hereto. )
42 Pa.C.S.A. §3154(c), Senior Judges
(Reproduced at p. 70a of Appendix hereto. )
Act of August 31, 1966, P.L. 47 §§1 et seq., 17 P.S. §§790-
.101 et seq. Assignment of Former Judges
(Reproduced at p. 71a of Appendix hereto. )
Pennsylvania Rule of Judicial Administration 701. Assign-
ment of Judges to Courts.
(Reproduced at p. 74a of Appendix hereto. )
STATEMENT OF THE CASE
This action was instituted by five judges of the Court
of Common Pleas of Philadelphia County, against the Gov-
ernor, Secretary of the Commonwealth, Treasurer, and
Court Administrator of Pennsylvania seeking declaratory
and equitable relief on the ground that Article V, Sec-
tion 16(b) of the Pennsylvania Constitution, providing
for the mandatory retirement of judges at age 70, and
various statutes enacted pursuant thereto are unconstitu-
tional in violation of the Due Process and Equal Protec-
tion clauses of the Fourteenth Amendment to the United
States Constitution. Jurisdiction of the District Court was
invoked pursuant to 28 U.S.C. 1331(a) and 28 U.S.C.
1343(3), (4). The action was tried without a jury on
April 17, 18 and 20, 1979, before the Honorable William
Ditter, Jr. in the United States District Court for the East-
ern District of Pennsylvania.
The evidence produced at trial consisted largely of a
detailed 76 paragraph stipulation of facts entered into by
the parties. Additionally, the plaintiff in this proceeding,
and the petitioners, herein, produced testimony of the
Honorable Edward J. Bradley, President Judge of the
Court of Common Pleas of Philadelphia County, two med-
ical experts in the field of aging, and several documentary
exhibits. The defendants (respondents) produced only
the Reference Manual to the Pennsylvania Constitutional
Convention of 1967-68. On the basis of such evidence,
the trial court entered extensive findings of fact which
established, with respect to this case, inter alia, the fol-
lowing facts:
Prior to 1968, Pennsylvania had no system requiring
the mandatory retirement of any of its public officials. In
1968, the Commonwealth adopted Article V, Section 16(b)
of the Pennsylvania Constitution, which established the
ee
|
mandatory retirement age of 70 for state judges.’ Coin-
cident therewith, Article V, Section 16(<) was adopted
providing that “a former or retired justice or judge may,
with his consent, be assigned by rhe Supreme Court on
temporary judicial service as may be prescribed by rule
of the Supreme Court.” See p. 39a of Appendix hereto.
By appropriate rules of Court and enabling legislation, a
system for utilizing the skills and services of “retired”
judges did thereafter become effective. In fact, during
the 10 years that mandatory retirement of judges has been
in effect in Pennsylvania, every judge who has reached
the age of 70 while in office, and who has requested as-
signment to post-retirement service has been accepted and
has so served. See pp. 37a; 48a-50a of Appendix hereto.
Judges serving after the age of 70 in Pennsylvania are
popularly referred to as “senior judges.”
Senior judges have come to form a significant and in-
dispensable portion of the tremendously overburdened
Pennsylvania judiciary. Comprising, at the time of trial,
approximately fifteen percent of that entire statewide body,
the service of senior judges has been essential to the ad-
xinistration of the court system in both the state as a
whole, and in Philadelphia in particular, without which
the services of a number of able, experienced judges would
be lost, the speedy trial rule in criminal cases could not
be complied with and the backlog of civil cases would be
uncontrollable. The productivity of senior judges on a
day-to-day basis has been equal to that of active judges.’
See pp. 49a-50a of Appendix hereto.
1. There remains, to date, no provision in rape tg re-
quiring the mandatory retirement of any other public officials.
2. As more fully discussed herein, the Court of Appeals in its
opinion reversing the District Court inaccurately and without sup-
port, in the record, characterized the services of such senior judges
as “part time.” See p. 15a of Appendix hereto.
Despite the fact that senior judges perform the same
duties as active judges and maintain the same standard,
in terms of both quality and quantity, with respect to
their work, senior judges have been placed in a substan-
tially inferior economic position in comparison to active
judges. The annual salary for Pennsylvania trial court
judges on active service at times relevant to this lawsuit
was $45,000. Additionally such judges are entitled to un-
limited paid sick leave, paid vacation and pay regardless
of whether the judge is in chambers or in court. See
pp. 40a; 62a of Appendix hereto. On the other hand, a
senior judge received as salary at the time relevant $125
per court day for days actually worked and was not en-
titled to any sick leave, vacation or chamber days. See
pp. 40a; 62a of Appendix hereto. Thus, if a senior judge
spent five days a week in court with no days off for illness,
no vacation and no chamber days, the most he could earn
per year would be $30,500. See p. 62a of Appendix hereto
(figure erroneously computed at $32,500).
The earnings of senior judges are further limited by
the availability of funds appropriated specifically for that
purpose. See pp. 40a; 62a of Appendix hereto. During
the past several years the legislative appropriations have
not been large enough to pay the per diem salary for all
the days of service of qualified and available senior judges
whose services were needed by the courts of Common
Pleas and as a result many senior judges worked part of
the time for no compensation at all. See pp. 40a; 62a of
Appendix hereto.
An additional inequity results from the operation of
the pension system with respect to senior judges. During
the course of their active service, judges in Pennsylvania
are required to make contributions to a pension fund,
which contributions are considered income for federal tax
purposes at the time earned. See p. 4la of Appendix
hereto. This money then appreciates in the pension fund
at four percent annual interest. Not only are the earn-
ings of senior judges limited by statute so that a combina-
tion of his per diem salary plus his pension benefits will
not exceed $45,000 per year,’ see p. 43a of Appendix
hereto, but, while judges under 70 on active service ac-
quire additional retirement benefits with added service,
senior judges not only do not acquire additional benefits
dv»"»g post-retirement service, but the pension payments
received by them during such service actually diminish
the pension estate available to that judge and his bene-
ficiaries.
Uncontradicted testimony by petitioners’ duly quali-
fied experts established on record, that based upon avail-
able scientific studies and testing procedures, the most
critical factor in cerebral function is the physical health
of an individual rather than his chronological age. The
expert evidence additionally established that professional
persons, such as doctors, lawyers and judges, as a general
rule retain their abilities coincident with good health until
very late in life, and in fact, tend to gain, rather than lose
their intellect as they become older. See pp. 43a-44a; 48a
of Appendix hereto.
The principal purpose behind the adoption of the
mandatory retirement provision of the Pennsylvania Con-
stitution, as determined by the trial court on the basis of
evidence and argument presented by respondents was the
removal of unfit judges from the bench. See pp. 48a-52a
3. It is, of course, unfair to draw any comparison between the
amount of salary earned by an active judge and the combined
amount of earnings plus pension benefits of a senior ju beaten in that
the pension benefits paid to a senior judge represents no
than a return of his own money together with that contri tie
made by the Commonwealth based upon his past service.
of Appendix hereto. The trial court found that reasonable,
non-discriminatory, alternative means of eftectively achiev-
ing such purpose did, in the form of a Judicial Inquiry
and Review Board, exist. See p. 51a of Appendix hereto.
On the basis of his findings of fact, Judge Ditter, on
September 4, 1979 handed down an Adjudication and
Order holding that the mandatory retirement provision of
Article V, Section 16(b) of the Pennsylvania Constitution
is in conflict with both the Due Process and Equal Protec-
tion clauses of the Fourteenth Amendment of the United
States Constitution at least insofar as it applies to Com-
mon Pleas judges, declaring said provision null and void,
and restraining the enforcement of this provision and all
of its enabling statutes as to any judge of the Court of
Common Pleas. See pp. 63a-64a of Appendix hereto. The
decision of the trial court was reversed on May 13, 1980
by a panel of the Third Circuit Court of Appeals, which
held that Article V, Section 16(b) does not violate the
Fourteenth Amendment. See pp. 3a; 15a; 25a of Appendix
hereto.
REASONS FOR GRANTING THE WRIT
1. The decision below is in conflict with the spirit of
this Court’s recent decisions concerning the constitu-
tionality, on the grounds of equal protection, of manda-
tory retirement systems and contrary to the principles
enunciated therein.
This Court has, in two recent decisions, upheld against
constitutional challenge on equal protection grounds, sys-
tems providing for the mandatory retirement of public
employees at a specific age. Vance v. Bradley, 440 U.S.
93, 99 S. Ct. 939, 59 L.Ed.2d 171 (1979); and Massa-
chusetts Board of Retirement v. Murgia, 427 U,S. 307, 96
S. Ct. 2562, 49 L.Ed.2d 520 (1976). In rendering those
decisions, however, both of which are materially different
factually from the present case, this Court made it em-
phatically clear that in order to withstand constitutional
scrutiny under the equal protection clause, a system of
compulsory retirement must not “exclude so few (em-
ployees) who are in fact unqualified as to render (the
applicable age) a criterion wholly unrelated to the ob-
jective of the statute.” Massachusetts Board of Retire-
ment v. Murgia, 427 U.S. at 315-16, 96 S. Ct. at 2568, 49
L.Ed.2d at 526.
In the Murgia case, the plaintiff, a Massachusetts state
police officer, made a broad frontal attack on the Massa-
chusetts law which required that uniformed state police
officers retire at age 50, alleging that the establishment of
a mandatory retirement age violates equal protection of
the law. Applying the rational relationship test,* this
4. This Court has developed a two-tiered approach to eval-
uating the constitutionality of statutes under the Equal Protection
Clause of the Fourteenth Amendment. Under this analysis, the
10
Court, after careful analysis, held that mandatory retire-
ment of state police officers at age 50 was rationally re-
lated to the purpose of assuring physical preparedness of
its uniformed police.
In reaching that conclusion, this Court in Murgia
stressed the arduous physical demands of a police officer's
job and the fact that “even [the plaintiff's] experts con-
cede that there is a general relationship between advancing
age and decreasing physical ability to respond to the de-
mands of the job” (427 U.S. at 310-11, 96 S. Ct. at 2565,
49 L.Ed.2d at 523). This Court also stressed the fact that
There is no indication that [the statute in question]
has the effect of excluding from service so few officers
who are in fact unqualified as to render age 50 a
criterion wholly unrelated to the objective of the stat-
ute (427 U.S. at 315-16, 96 S. Ct. at 2568, 49 L.Ed.2d
at 526).
In the Vance case, the plaintiffs, a group of Foreign
Service employees, attacked a federal statute requiring the
retirement at age 60 of federal employees covered by the
Foreign Service retirement and disability system on the
extremely narrow ground that it violated equal protection
because employees covered under the Civil Service retire-
ment and disability system were not required to retire
until age 70. This Court upheld the statute following its
earlier decision in Murgia. Again, applying the less strin-
gent analysis, this Court, in finding a rational relationship
in Vance, stressed the desirability of stimulating the highest
court applies the rational relationship test in situations not involving
any “fundamental rights” or “suspect classifications.” San Antonio
Independent School District v. Rodriguez, 411 U.S. 1, 16-17, 93 S.
Ct. 1278, 1287-88, 36 L.Ed.2d 16 (1973).
11
performance in the ranks by assuring the opportunity for
promotion despite the limited number of personnel in vari-
ous classes (440 U.S. at 101, 99 S. Ct. at 945, 59 L.Ed.2d
at 178). The Court also stressed the rigors of overseas
duty to which Foreign Service employees are subjected
(440 U.S. at 104, 99 S. Ct. at 947, 50 L.Ed.2d at 180).
And the Court concluded that even if the line drawn by
Congress is under-inclusive because it does not require
retirement at 60 of Civil Service employees serving over-
seas. It, nevertheless, does not violate equal protection.
An analysis of the factual distinctions between both
Murgia and Vance, and the present case, makes it clear
that the Pennsylvania system of mandatory retirement of
judges violates equal protection under the mationale of
those cases. First, and foremost, not only does the evi-
dence produced in the present case fail, as required by
Murgia and Vance, to indicate that more than a few of
those judges excluded upon reaching the age of 70 would
be unqualified; the stipulated facts reveal that, in the face
of a statewide shortage of judges, in the 10 years that
mandatory retirement has been in effect in Pennsylvania,
not a single judge has been involuntarily retired from serv-
ice, see pp. 37a, 48a-50a of Appendix hereto, and further
that the services of senior judges have been essential to
the operation of the Pennsylvania judicial system. See
pp. 49a-50a of Appendix hereto. Second, the uncontra-
dicted scientific evidence in this case, unlike in Vance and
Murgia, revealed no relationship upon which one could
justify the disputed system of compulsory retirement. See
pp. 43a-44a; 48a of Appendix hereto. Finally, both Murgia
and Vance involved occupations that are physically taxing.
Thus, as is pointed out above, the Supreme Court in
Murgia stressed the “arduous” nature of a police officer's
duties (427 U.S. at 41, 96 S. Ct. at 2565, L.Ed.), and in
Vance stressed the rigors of overseas duty by Foreign Serv-
12
ice employees (440 U.S. 101, 99 S. Ct. at 945, 59 L.Ed. at
178, 179). By way of contrast, however difficult a judge's
duties may be, they do not involve any physical labor.
2. The Court below erred in reducing the entire argu-
ment of Petitioners, and the holding of the District
Court, with respect to equal protection, to a single in-
accurate footnote while using the bulk of its opinion to
deal with an issue which it created and which was
neither argued by the Petitioners nor relied on by the
District Court.
Constrained by the obvious dictates of Murgia and
Vance, Petitioners made it exceedingly clear in the opening
statement by their counsel in the trial court, in their brief
in the trial court, in their Court of Appeals brief, and at
oral argument before the Court of Appeals that the point
of their equal protection attack was aimed not at the con-
cept of mandatory retirement per se but rather at the
stipulated and uncontradicted facts in the record of the
present case. Those facts, as pointed out above, reveal
the evil of the Pennsylvania system which has eliminated
no unfit judges but on the contrary has utilized the vast
experience of judges reaching 70, paying those judges
substantially less than is paid to judges under 70 for the
same work,
Based upon these uncontradicted facts, the trial judge
held:
While considering this system uf compensation, it is
to be kept in mind that the state has not yet turned
down an application for senior judge duties, and relies
on senior judges as an essential part of its court sys-
tem. It becomes readily apparent that this system
is not in any way related to the removal of unfit
13
judges from the bench. The fact is that the present
system does not mandate retirement from the bench
at all. Rather, it simply mandates retirement from
full salary. Removal from the bench has been for all
practical purposes, a voluntary matter.
Neither Murgia nor Vance involved situations where
employees were forced to retire, allegedly, because
they were too old to do their jobs, only to be allowed
back into doing precisely what they had done before,
albeit for a considerably reduced salary. In both
of those cases, there was a clear basis for believing
that employees would lose their ability to perform
their jobs effectively as they reached advanced ages.
Here, by contrast, the state’s own conduct shows not
only that no such basis exists, but also that the state
never truly believed in its existence. The state en-
courages judges to work past 70, has never turned
down a request for post-70 judicial duties, and even
relies on the work of judges over 70 to keep its court
system operating effectively. Nevertheless, it chooses
to pay these judges at a significantly reduced rate, for
no apparent reason other than age. In short, the man-
datory retirement system is merely a thinly veiled
scheme for acquiring cheap judicial labor. In prac-
tical application, the system bears no rational relation-
ship to the state’s purpose of removing unfit judges.
I conclude, therefore, that this system violates plain-
tiffs’ right to equal protection of the laws. See pp. 62a-
63a of Appendix hereto.
The Court of Appeals, nevertheless, through its panel
decision, virtually ignores these facts and treats the case as
if the plaintiffs had made a per se attack on mandatory
retirement. No mention whatsoever is made of the fact
14
that not a single judge has been forced off the bench at
age 70.° The sole mention of the argument on which the
plaintiffs relied and on which the district court based its
conclusions appears in a single footnote, see p. 15a of Ap-
pendix hereto, where the panel erroneously justifies the
lower rate of pay for senior judges on the ground, unsup-
ported by the evidence, that their employment is “part-
time”, totally ignoring the fact that the stipulated and
uncontradicted evidence is that senior judges, during the
period they work, work as hard and long as active judges,
although generally they do not work all year. Moreover,
the panel, in its footnote, attempts to justify the lower
salary for senior judges on the ground that they receive
a pension, totally ignoring the fact that a substantial part
of the pension is the judge’s own money deducted from
his salary during his years of service, on which he has al-
ready paid income tax and which has appreciated in the
hands of the Commonwealth at the meager rate of four
percent interest. See p. 4la of Appendix hereto. The
Court of Appeals has thereby so far departed from the
accepted and usual course of judicial proceedings as to
call for an exercise of this Court’s jurisdiction.*
5. The court does without any foundation in the record state
that from 1969 through 1978, only one common pleas judge was re-
moved from office for any reason. See p. 13a of Appendix hereto.
6. Had the Court of Appeals properly confronted the issue
placed before it by plaintiffs, its reliance upon not only Vance and
Murgia, but upon Trafelet v. Thompson, 594 F.2d 623 (7th Cir.
1979, cert. denied, — U.S. —, 100 S. Ct. 219, 62 L.Ed.2d 142 (1979),
would have proven inappropriate. There was no indication in
Trafalet that a substantial number of judges reaching age 70 con-
tinued judicial service as senior judges and the Court in that case,
paraphrasing the aforecited portion of the Murgia decision, specif-
ically held:
When, however, a statutory requirement of retirement at a
_ age is tested by the rational oe standard, the
ine drawn by the legislature will be accepted where [tjhere
15
3. The Court below erred in not following the decision
of this Court in Cleveland Board of Education v. La-
Fleur with respect to Plaintiffs’ Due Process argu-
ment.
Faced with factual circumstances virtually identical
to those presently before it, this Court in Cleveland Board
of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 31
L.Ed.2d 52 (1974), held that local school board regulations
requiring every pregnant school teacher to take maternity
leave without pay at prescribed times before and after
delivery regardless of the individual teacher's ability to
perform, violated her rights under the Due Process clause
by creating an “irrebuttable presumption” of incompe-
tency.” Adopting a line of reasoning quite distinct from
is no indication that [the statute] has the effect of excluding
from service so few . . . who are in fact unqualified as to
render age a criterion wholly unrelated to the sbjeative of the
statute. (594 F.2d at 627). (Omissions in original).
Furthermore, there was no suggestion that judges performing post
retirement service in Illinois, whose mandatory judicial retirement
laws were under attack in Trafelet, received less salary for the same
work compared to judges under the retirement age. As a matter of
fact, the Illinois mandatory retirement system which was involved
in Trafelet includes the following provision:
(a) The General Assembly may provide by law for the retire-
ment of Judges and Associate Judges at a prescribed age. Any
retired Judge or Associate Judge, with his consent, may be
— by the Supreme Court, to judicial service for which he
shall receive the applicable compensation in lieu of retirement
benefits. A retired Associate Judge may be assigned only as an
Associate Judge. (Emphasis added) (Ill. Const. Art. §15(a) ).
7. The irrebuttable presumption doctrine while given renewed
vitality in LaFleur, supra, 414 U.S. 632, 94 S. Ct. 791, 31 L.Ed.2d
52 (1974), was rooted in a series of earlier decisions. See, e.g., U.S.
Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S. Ct. 2832, 37 L.Ed.
2d 767 (1973) (Irrebuttable presumption that household is ineligible
for food stamps if it contains 18 year old claimed as dependent on
tax return is invalid); Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230,
By,
16
any form of equal protection analysis, this Court, in La-
Fleur, made a determination that such regulations, while
legitimate (and ostensibly rationally related to a proper
obiective) were, by virtue of their overbreadth, neverthe-
less constitutionally deficient.
This Court held:
The question remains as to whether the cutoff dates
at the beginning of the fifth and sixth months can be
justified on the ground advanced by the school boards
—the necessity of keeping physically unfit teachers out
of the classroom. There can be no doubt that such
an objective is perfectly legitimate both on education
and safety grounds.
And, despite the plethora of conflicting medical tes-
timony in these cases, we can assume, arguendo, that
at least some teachers become physically disabled
from effectively performing their duties during the
latter stages of pregnancy. The mandatory termina-
tion provisions of the Cleveland and Chesterfield
County rules surely operate to insulate the classroom
from the presence of potentially incapacitated preg-
nant teachers. But the question is whether the rules
sweep too broadly. [Citation]
37 L.Ed.2d 63 (1973) (Irrebuttable presumption of non-residency
for purpose of A ageae for reduced tuition at state university
is invalid); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31
L.Ed.2d 551 (1972) (Irrebuttable presumption that unmarried
father is not competent to raise child is invalid); Carrington v. Rash,
380 U.S. 89, 85 S. Ct. 775, 13 L.Ed.2d 675 (1965) (Irrebuttable
presumption that serviceman is non-resident for voting purposes is
invalid); Heiner v. Donan, 385 U.S, 312, 52 S. Ct. 358, 76 L.Ed. 772
(1932) (Irrebuttable presumption that transfers for inadequate con-
sideration within two years of death were made in contemplation
of death for federal estate tax purposes is invalid); Schlesinger v.
Wisconsin, 270 U.S. 230, 46 S. Ct. 260, 70 L.Ed.2d 557 (1926) (Same
as to irrebuttable presumption for state inheritance tax purposes).
P i
17
That question must be answered in the affirmative,
for the provisions amount to a conclusive presump-
tion that every pregnant teacher who reaches the fifth
or sixth month of pregnancy is physically incapable
of continuing. There is no individualized determina-
tion by the teacher's doctor—or the school board’s—as
to any particular teacher's ability to continue at her
job. The rules contain an irrebuttable presumption
of physical incompetency, and that presumption ap-
plies even when the medical evidence as to an in-
dividual woman’s physical status might be wholly to
the contrary (414 U.S. at 643-44, 94 S. Ct. at 798, 37
L.Ed.2d at 62).
Quoting with approval from its prior decision in
Vlandis v. Kline, 412 U.S. 441, 446, 93 S. Ct. 2230, 2233,
37 L.Ed.2d 63 (1973), which had invalidated a state stat-
ute mandating an irrebuttable presumption of non-resi-
dency for the purpose of qualifying for reduced tuition at
a state university, this Court in LaFleur, further held:
[I]t is forbidden by the Due Process Clause to deny
an individual the resident rates on the basis of a per-
manent and irrebuttable presumption of non-residence,
when that presumption is not necessarily or univer-
sally true in fact, and when the State has reasonable
alternative means of making the crucial determina-
tion’ (414 U.S. at 644-45, 94 S. Ct. at 798, 39 L.Ed.2d
at 63).
The trial court correctly applied the irrebuttable pre-
sumption doctrine to the present case. It determined that
Article V, Section 16(b) of the Pennsylvania Constitution
offends Due Process by creating a presumption that all
18
judges over the age of 70 are incompetent to perform their
judicial duties, and that such presumption operates to pre-
clude individual determinations of judicial competency not-
withstanding the fact that “it is untrue in most, if not all
cases’, and the fact that “reasonable alternative means
exist by which the state can accomplish the rule’s intended
purposes”, see pp. 45a-58a of Appendix hereto.
Despite Judge Ditter's cogent analysis, the Court of
Appeals erroneously reversed the trial court’s application
of the irrebuttable presumption doctrine, see pp. 15a-25a
of Appendix hereto. Acknowledging, at least implicitly,
the continued viability of the doctrine generally,’ see
pp. 15a-16a of Appendix hereto, the Third Circuit panel
decision offered no basis upon which to avoid its applica-
tion other than a spurious distinction which it created be-
tween the interest involved in “freedom of personal choice
in matters of marriage and family life” in LaFleur, and
the interest involved in employment underlying the present
controversy. See pp. 19a-20a of Appendix hereto. The
Court of Appeals concluded that the former, but not the
latter, interest implicated fundamental rights protected un-
der the Due Process Clause. In this reasoning, the Court
of Appeals erred. See pp. 19a-20a of Appendix hereto.
While it is true that employment is not such a “fun-
damental” right that the strict scrutiny standard of equal
protection analysis’ would apply, neither is one’s personal
choice in matters relating to marriage and family. This
Court, in LaFleur nowhere suggested that it was. Further-
8. The decision of this Court in LaFleur has been distinguished,
and deemed to be inapplicable to a certain specific category of
cases, here not relevant. Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct.
2457, 45 L.Ed.2d 522 (1975). The appropriate application of the
irrebuttable presumption doctrine has never, however, been over-
ruled, or placed in serious doubt, by this Court.
9. See footnote 4, supra.
|.
19
more, it is certain that the right of employment is no less
protected under the United States Constitution, than are
the rights involved in LaFleur.
This Court has long emphasized that the right to work
has its roots in the Constitution, is of vital importance to
the individual, and is constitutionally protected. In Truax
v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7, 10, 60 L.Ed. 131
(1915) this Court held that “the right to work for a living
in the common occupations of the community is of the very
essence of the personal freedom and opportunity that it
was the purpose of the [Fourteenth] Amendment to se-
cure.” In Board of Regents v. Roth, 408 U.S. 564, 572,
92 S. Ct. 2701, 2707, 33 L.Ed.2d 548 (1972), the Court
described the Fourteenth Amendment's guarantee of lib-
erty as including “the right of the individual to . . . engage
in any common occupations of life.” And in Willner v.
Committee on Character & Fitness, 373 U.S. 96, 102, 83
S. Ct. 1175, 1180, 10 L.Ed.2d 224 (1963), this Court held
that a “State cannot exclude a person from the practice of
law or from any other occupation in a manner or for rea-
sons that contravene the Due Process or Equal Protection
Clause of the Fourteenth Amendment. Finally, the sig-
nificance of LaFleur to the case presently before this Court
with regard to compulsory retirement is particularly em-
phasized by the following statement made by Justice Rehn-
quist in his dissenting opinion in the LaFleur case:
More closely in point is the jeopardy in which the
Court's opinion places longstanding statutes providing
for mandatory retirement of government employees.
Since this right to pursue an occupation is presumably
on the same lofty footing as the right of choice in
20
matters of family life, the court will have to strain
valiantly in order to avoid having today’s opinion lead
to the invalidation of mandatory retirement statutes
for governmental employees. In that event federal,
state, and local governmental bodies will be remitted
to the task, thankless both for them and for the em-
ployees involved, of individual determinations of phys-
ical impairment and senility (414 U.S. at 659-60, 94
S, Ct. at 805-6, 39 L.Ed.2d 71). (Emphasis added. )
4. The decision below is incorrect with respect to its
review of the District Court’s Equal Protection and
Due Process analysis, and with respect to its own sub-
stituted analysis thereof.
The District Court based its determination that the
Pennsylvania system of mandatory retirement for judges
is unconstitutional upon its conclusions that (1) in prac-
tical application, the system bears no rational relationship
to the state’s purpose of removing unfit judges (See p. 63a
of Appendix hereto); and (2) while in itself serving a le-
gitimate purpose, the system “sweeps too broadly” thus
creating an impermissible, irrebuttable presumption of un-
fitness. See pp. 48a-49a of Appendix hereto.
In applying both equal protection and due process
analysis to the facts before it, the District Court correctly
determined, on the basis of the argument and uncontra-
dicted evidence presented by defendants that the primary
purpose of mandatory retirement of judges in Pennsylvania
is the removal of unfit judges. See pp. 48a; 6la-63a of
Appendix hereto. The defendants argued this position in
both their trial brief, and their brief in the Court of Ap-
peals. Moreover, the defendants assertion as to the in-
tended purpose of the mandatory retirement provision is
>
21
amply supported by the history of the provision. Refer-
ence Manual Number 5, prepared for the Constitutional
Convention, which adopted Article V, Section 16(b), put
into evidence by the Commonwealth, and relied on so
heavily by the Court of Appeals, see pp. 3a-4a; 5a-6a;
12a-14a of Appendix hereto, is replete with references to
the mandatory retirement of unfit and senile judges, as is
the Journal reporting the discussion of the provision on
the convention floor. 2 J. of the Const. Conv. 1078-79
(1967-8).
The Court of Appeals expressly acknowledged the
logic inherent in the district court’s analysis. See page lla
of Appendix hereto. It nevertheless sidestepped the record
in holding that the district court had mischaracterized the
primary purpose of 16(b), and in supplying its own sub-
stituted determination of such purpose(s).
Moreover, even if the four reasons gleaned by the
Court of Appeals from the Reference Manual as being the
basis of mandatory retirement were accepted for purposes
of discussion they are not inconsistent with the purpose of
removing unfit judges and their application to the facts of
the present case is not rationally related to a legitimate
state purpose, and, therefore, the retirement provision is
unconstitutional. The four purposes set forth by the panel
are: (1) increase judicial manpower by retiring older
judges but retaining their services while bringing in new
younger judges; (2) eliminate the unpleasantness of re-
moving aged and disabled judges on an individual basis;
(3) prevent the harm by a few senile judges; and (4) cor-
respond with the current trend toward mandatory retire-
ment. See page 5a of Appendix hereto.
The mandatory retirement system of judges that exists
in Pennsylvania is not rationally related to any of these
5”
22
purposes. While the first purpose of increasing judicial
manpower may, in fact be furthered, by reducing 70 year
old judges to a senior judge status, it furthers that purpose
in a totally arbitrary rather than rational way. Since the
older judges are not deemed in any way to be unfit to serve
and are all actually permitted to serve with their services
being essential to the operation of the judicial system, it
is no more rational to choose them for reduction to an in-
ferior status than it would be to choose judges whose names
begin with certain letters in the alphabet. Moreover,
paying these judges less money for the same work as active
judges is completely without justification. The second pur-
pose—eliminating the unpleasantness of removing aged and
dissabled judges on an individual basis—and the third pur-
pose—preventing the harm by a few senile judges are both
clearly not rationally related to the Pennsylvania system
of mandatory retirement of judges. Under the system,
where all judges who desire to, are permitted to serve be-
yond 70, those judges who may become aged or disabled
must still be removed on an individual basis, or if they are
not, the potential for harm from the few senile judges still
continues to exist.
5. The decision below raises important constitutional
issues of substantial public concern.
The decision of the Court of Appeals for the Third
Circuit raises important constitutional issues which impact
directly, and in some cases immediately, upon the more
than 300 trial judges in the Commonwealth of Pennsyl-
vania. If the decision is permitted to stand, each such
judge who has attained, or in the future, while in office
might attain the age of 70, will suffer a constitutional dep-
rivation in being forced to choose between the equally
7%
23
unsatisfactory alternatives of having his employment ter-
minated entirely, or continuing to perform in exactly the
same capacity as theretofore but at an inferior status.
The effect of the lower court’s decision is not, how-
ever, limited to its impact upon the judges of the Court
of Common Pleas. Its more universal significance lies in
its power to lend legitimacy to a potential exploitation of
countless numbers of “older people” in this nation whose
physical and mental abilities permit, and in many cases,
financial needs compel, them to continue or return to em-
ployment beyond ages which have traditionally been asso-
ciated with retirement. The incidence of such “post retire-
ment age” service appears to be on the increase, running
parallel to advances in medical science, and to the down-
ward turn in this nation’s economy. Senior citizens, who
have been weakened by a pattern of discrimination gen-
erally, and healthy senior citizens, who often represent a
minority amongst their ranks, specifically, are particularly
susceptible to disparate treatment in such matters as equal-
ity of wages and employment.
The problem has become even more crucial in the
wake of this Court’s decisions in Massachusetts Board of
Retirement v. Murgia, supra, and Vance v. Bradley, supra.
These decisions, while contrary to the type of discrimina-
tory treatment as that described above, are, in their ap-
proval of the broad concept of mandatory retirement per
se, susceptible to misinterpretation, and capable of abuse.
It is incumbent upon this Court, therefore, to clarify its
opinions in Murgia and Vance, and to make clear, in par-
ticular, that its approval of mandatory retirement may not
be used to justify a system, like that in the present case,
where in fact no compulsory retirement exists, but merely
a reduction in salary and status based solely upon chron-
ological age.
24
In granting Certiorari, this Court must confront this
timely issue and proscribe determinatively, pursuant to the
dictates of the Due Process and Equal Protection Clauses
of the Fourteenth Amendment, any discriminatory treat-
ment such as that characterized by Judge Ditter, in this
case, as a “thinly veiled scheme for acquiring cheap ...
labor.” See page 63a of Appendix hereto.
25
CONCLUSION
For these reasons, a Writ of Certiorari should issue to
review the judgment and opinion of the United States Court
of Appeals for the Third Circuit.
Respectfully submitted,
STEPHEN M. FELDMAN,
JEFFREY S. ROSENBLUM,
Counsel for Petitioners
FELDMAN & FELDMAN, P.A.,
1715 Rittenhouse Square,
Philadelphia, Pennsylvania 19103
(215) 546-2604
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 79-2467
MALMED, EDWIN S., KUBACKI, STANLEY L.,
LAGAKOS, GREGORY G., MURPHY, JOSEPH T.,
STERN, JAMES L.
VU.
THORNBURGH, RICHARD L., Individually and as
Governor of Pennsylvania, ALLEN, ETHEL D., In-
dividually and as Secretary of the Commonwealth of
Pennsylvania, CASEY, ROBERT E., Individually
and as Treasurer of the Commonwea!th of Pennsyl-
vania, and BARBIERI, ALEXANDER F., Individ-
ually and as_ Pennsylvania State Court
Administrator,
Appellants
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 78-1418)
Argued April 21, 1980
Before: ALDISERT, WEIS and GARTH, Circuit Judges
(Filed Mav 13. 1980)
la
2a
Joseph Kenneth Hegedus, Esq.
Deputy Attorney General
Allen C. Warshaw, Esq. (argued)
Deputy Attorney General
Chiet, Civil Litigation
itdward G. Biester, Jr., Esq.
Attorney General
Department of Justice
Commonwealth of Pennsylvania
Strawberry Square, 16th Floor
Harrisburg, Pennsylvania 17120
COUNSEL FOR APPELLANTS
THORNBURGH, ALLEN, AND CASEY
Kathleen M. Quinn, Esq.
Staff Attorney
Administrative Office of
Pennsylvania Courts
1414 Three Penn Center Plaza
Philadelphia, Pennsylvania 19102
COUNSEL FOR APPELLANT BARBIERI
Stephen M. Feldman, Esq. (argued)
Feldman & Feldman
Suite 2090, 1845 Walnut Street
Philadelphia, Pennsylvania 19103
COUNSEL FOR APPELLEES
" OPINION OF THE COURT
ALDISERT, Circuit Judge.
This appeal by four Pennsylvania officials requires
us to decide if Article V, §16(b) of the Pennsylvania Con-
stitution, which requires retirement of state judges at
age seventy, violates the equal protection and due proc-
ess clauses of the fourteenth amendment. The district
3a
court held that it does and enjoined the appellants from
enforcing the provision and its enabling statutes. Be-
cause we conclude that Article V, §16(b) does not violate
the fourteenth amendment, we reverse.
Five judges of the Court of Common Pleas of Phila-
delphia County, each of whom is nearing his seventieth
birthday, brought this action for declaratory and equita-
ble relief against the Governor, the Secretary of the
Commonwealth, the Treasurer, and the Court Adminis-
trator of Pennsylvania. The action was tried without a
jury on April 17, 18, and 20, 1979. On September 21,
1979, the court handed down its opinion and order,
Malmed v. Thornburgh, 478 F.Supp. 998 (E.D.Pa.
1979), containing extensive findings of fact. It held that
the mandatory retirement provision of Article V, §16(b)
conflicts with both the due process and equal protection
clauses of the fourteenth amendment of the United
States Constitution, declaring the provision null and
void, and enjoining the enforcement of the provision and
its enabling statutes “as to any judge of the Court of
Common Pleas.” 478 F.Supp. at 1016. Governor
Thornburgh and the other named defendants have
appealed.
A special constitutional convention convened in
1967 and made recommendations for revising the Penn-
sylvania Constitution in four discrete fields: legislative
apportionment; judicial administration, organization, se-
lection, and tenure; local government; and taxation and
state finances. A new Judiciary Article was adopted on
April 23, 1968, including Article V, §16(b), which pro-
vides in relevant part: “Justices, judges and justices of
the peace shall be retired upon attaining the age of sev-
enty years.” This article was the product of extensive de-
liberation by the Judiciary Subcommittee of the Prepara-
tory Committee for the Pennsylvania Constitutional
4a
Convention, under the direction of Dean Burton R.
Laub. The subcommittee identified as a matter of con-
cern “the problem of retiring judges who are mentally or
physically unable to perform their duties either by rea-
son of old age or by reason of some mental or physical
ailment.”' The subcommittee described this problem as
a sensitive and delicate matter. Practically all
lawyers and judges are familiar with the problem,
but prefer to keep it in the legal family. Too often
the disabled judges choose to remain on the bench
despite their failing powers. Why do aged and
disabled judges refuse to retire? There probably are
many reasons, some personal and others objective.
Some prefer the active life of a judge to the with-
drawal of retirement. Others are not financially in-
dependent, and may find retirement and disability
pensions inadequate. *
In Reference Manual No. 1, distributed to the dele-
gates by the Preparatory Committee, chaired by then
Lieutenant Governor, now United States District Judge,
Raymond J. Broderick, the committee stated: ‘“Manda-
tory retirement does substantially increase judicial man-
power when a plan for part-time post-retirement service
exists. The combined old experience and new energetic
manpower helps alleviate case back-log.”* Noting that
“{a]bout one-half of the states require judges to retire at
a fixed age, with seventy years being the most com-
mon,””" the Judiciary Subcommittee summarized the ar-
1. Judiciary Subcomm. of the Pr paratory Comm. for the
Pennsylvania Constitutional Convention, Reference Manual No. 5,
at 199 (1968) |hereinafter cited as Reference Manual No. 5]. Refer-
ence Manual No. 5 is reprinted in App. at 312a.
2. Id. at 199.
3. Preparatory Comm. for the Pennsylvania Constitutional
Convention, Reference Manual No. 1, at 50 (1968) [hereinafter
cited as Reference Manual No. i].
4. Reference Manual No. 5, supra note 1, at 202 (citing Sum-
maries of Judicial Salaries and Retirement Plans, 49 J. Am. Jud.
Socy. 168 (Feb. 1966)).
5a
guments favoring a mandatory retirement provision. In
Reference Manual No. 5, it noted that a mandatory re-
tirement policy
substantially increases judicial manpower when a
plan for part-time post-retirement service exists. By
continually bringing in younger judges while re-
taining the part-time services of willing and able re-
tired judges, a system of mandatory retirement plus
post-retirement service helps solve the pressing
problem of court congestion and delay. As men-
tioned previously, Pennsylvania already has pro-
vided for voluntary post-retirement service.
eliminates unpleasantness of removing aged and
disabled judges on an individual selective basis.
Mandatory retirement is more impersonal than indi-
vidual removal; everyone is treated alike. The diffi-
culty and unpleasantness of determining which
judges are senile and which are not is largely
avoided.
prevent(s] harm by few senile judges [which] more
than offsets loss of judges who retain full powers
past normal age. Besides, the services of able retired
judges may be secured by a _ provision for
post-retirement service.
corresponds with current trend towards mandatory
retirement in other public and private employ-
ments. There appears to be no good reason why
judges should be treated differently from other pub-
lic officials, teachers, executives, and other profes-
sional people who are subject to compulsory
retirement. ° :
The subcommittee reported that the American Bar Asso-
ciation had proposed that judges be required to retire at
an age fixed by statute, but not less than age sixty-five.”
5. Reference Manual No. 5, supra note 1, at 203-04. |
6. ABA Model State Judiciary Article §6, 42, reprinted in Ref-
erence Manual No. 5. supra note 1, at 394, 398.
6a
Moreover, ‘the Pennsylvania Bar Association had advo-
cated mandatory retirement for Pennsylvania trial
judges at an age not younger than seventy.’ The Nation-
al Municipal League had made a similar recommenda-
tion in its model state constitution.®
The parties have stipulated that the Judiciary Sub-
committee of the Preparatory Committee drafted what
subsequently became Article V of the Pennsylvania Con-
stitution when ratified by popular vote on April 23,
1968.” A fair reading of Reference Manual No. 5 and a
thorough examination of the Journal of the Constitution-
al Convention discloses no basis for the district court's
major premise that the predominant purpose of § 16(b) is
“a presumption that all judges become incompetent to
pertorm their judicial duties when they reach 70 years of
age. . .." 478 F.Supp. at 1008.'° Therefore, the reasons
7. Reference Manual No. 5, supra note 1, at 203. Bernard G.
Segal, Esquire, representing the Pennsylvania Bar Assocation, ob-
served in his statement before the committee:
It is regrettable, but grimly true, that one bad Judge can undo
the efforts of a hundred excellent Judges, and this is greatly ac-
centuated during these days when factors beyond the control of
any Judge, like those causing delays of four or five years in the
trial of a case in Philadelphia, create general dissatisfaction
with our judicial system. .. . |E]ven a very few unfit Judges
constitute a serious impediment to the efficient administration
of justice.
Preparatory Comm. of the Pennsylvania Constitutional Convention,
Testimony at Public Hearings and Other Statements: Judiciary 18
(1967-1968) (Statement of Bernard G. Segal on behalf of the Penn-
sylvania Bar Association).
8. Reference Manual No. 5, supra note 1, at 203.
9. Stipulation Numbers 75 and 76, App. at 342a.
10. The provision was included in the original draft presented to
the convention by the Judiciary Committtee chaired by Governor
William W. Scranton and Gustave Amsterdam. | Debates of the
Pennsylvania Constitutional Convention of 1967-1968 at 444 (Feb.
5, 1968) |hereinafter cited as Dewates). Section 16(b) was first set
forth as §14(b). There was no floor discussion of the section during
the first and second consideration of the draft on the convention
floor.
7a
stated to the delegates by the convention's Preparatory
Committee are central to a proper analysis of §16(b) be-
cause they constitute the only record of the legislative
purpose underlying the provision.
In reviewing a state statute or constitutional provi-
sion 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 rea-
soning 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
justifving the provision need not be the primarv purpose
of the provision. McGinnis v. Royster, 410 U.S. 263, 276
(1973). Although our examination would not necessarilv
be limited to the purposes explicitly stated in the docu-
ments of the Judiciary Subcommittee, we conclude that
the objectives therein are sufficient to uphold §16(b) un-
der both the equal protection and due process clauses.
During the third consideration of the judiciary article the
co-chairman of the Judiciary Committee Retirement Subcommittee
stated
that men who have attained 70 mav be. both physically and
mentally, extremely competent and may conceivably give
something of everlasting significance to the judiciary. In ac-
cordance with this, the committee recommended that these
judges who are over 70 vears of age. although thev were re-
tired. could be used by the Supreme Court on temporary as-
siznments throughout the Commonwealth.
I] Debates. supra, at LO78 (remarks of Delegate Filson).
8a
The district court concluded that Article V, §16(b)
violates the equal protection clause of the fourteenth
amendment to the United States Constitution because it
deprives appellees of their employment solely because
they are seventy years old, thereby discriminating
against them on the basis of age. By treating appellees
differently than younger judges, the court held that the
provision implicates the equal protection clause. Absent
a rational relationship to a legitimate state objective the
provision offends the equal protection clause. Before ex-
amining the court’s equal protection analysis, we must
consider the relevant teachings of the Supreme Court.
A.
Of the many equal protection decisions announced
by the Supreme Court in recent years, two are particu-
larly applicable. Vance v. Bradley, 440 U.S. 93 (1979);
Massachusetts Board of Retirement v. Murgia, 427 U.S.
307 (1976) (per curiam). In Murgia, the Court rejected
a challenge to a Massachusetts statute mandating retire-
ment of uniformed state patrolmen at age fifty. The dis-
trict court had held that the compulsory retirement re-
quirement was not rationally related to the legislative
objective of assuring physical ability of active officers. In
reversing, the Court agreed with the district court that
the rational basis standard of review was applicable,
noting that the challenged statute affected neither a fun-
damental right nor a suspect class. 427 U.S. at 312-14. It
disagreed with the district court’s conclusion that the re-
tirement statute failed to meet that standard, however,
holding that “mandatory retirement at 50 serves to re-
move from police service those whose fitness for uni-
formed work presumptively has diminished with age.”
Id. at 315. The record contained evidence of the negative
relationship between aging and the abilitiy to perform
police duties. Significantly, however, the Court justified
9a
its conclusion by placing the burden of persuasion on
the police officers: “There is no indication that §26(3)(a)
has the effect of excluding from service so few officers
who are in fact unqualified as to render age 50 a criteri-
on wholly unrelated to the objective of the statute.” Id. at
315-16 (footnote omitted). Thus, although the relation-
ship between aging and diminished ability to perform
was not invariable, the patrolmen attacking the statute
had failed to demonstrate that the relationship on which
the statute was undeniably based was actually unfound-
ed in a significant number of cases.
The Court has recently examined a compulsory re-
tirement statute in Vance v. Bradley. The Court rejected
an equal protection attack on a federal statute requiring
retirement at age sixty by employees covered by the for-
eign service retirement system, even though another
statute allowed civil service personnel to work until age
seventy.'' The Court again noted the absence of a fun-
damental interest or a suspect class, and applied the ra-
tional basis standard. 440 U.S. at 97. In concluding that
the statutory schema serves a rational basis, the Court
reasoned that the mandatory retirement age of sixty at-
tempts to “stimulatie] the highest performance in the
ranks of the Foreign Service by assuring that
opportunities for promotion would be available despite
limits on the number of personnel classes and on the
number of positions in the Service.” Id. at 101. It con-
cluded that the mandatory retirement provision is not
invalid because it is rationally related to the goal of high
pertormance. Id. at 102.
This case also must be examined under the rational
basis test. As the Court noted in Murgia,. a class of per-
sons composed of the elderly is not a suspect class. 427
U.S. at 313. Nor is the interest of appellees in public em-
ployment a fundamental interest. Id. Theretore. the
Ll. By the time the decision in Vance was rendered, the retire-
ment age for civil service personnel had been eliminated. 440 U.S.
at 96.
10a
standard by which we must review this provision of the
Pennsylvania Constitution is the one employed in Vance
v. Bradley:
The Constitution presumes that, absent some rea-
son to infer antipathy, even improvident decisions
will eventually be rectified by the democratic proc-
ess and that judicial intervention is generally un-
warranted no matter how unwisely we may think a
political branch has acted. Thus, we will not over-
turn such a statute unless the varying treatment of
different groups or persons is so unrelated to the
achievement of any combination of legitimate pur-
poses that we can only conclude that the legisla-
ture’s actions were irrational.
440 U.S. at 97 (footnote omitted). Having thus
ascertained the proper standard for reviewing Article V,
§16(b), we must now examine the district court's rea-
sons for holding it violative of the equal protection
clause.
B.
In its discussion of the equal protection contention,
the district court properly acknowledged that “strict ju-
dicial scrutiny” is an inappropriate test in this context
and that the proper scope of review is the “relatively re-
laxed” rational basis standard employed in Murgia. Even
though it accepted the rational basis test, however, the
district court concluded that no rational basis exists for
the state constitutional provision. The court’s analysis
took as its major premise that the only basis for the state
provision is its assumption that judges who are over sev-
enty are unable to perform satisfactorily. 478 F.Supp. at
1008. Thus, the district court stated that “the record
contains no proof of a relationship between advancing
age and ability to perform the duties of a judge. On the
contrary, the evidence before me belies the existence of
lla
any such relationship.” Id. at 1014. Proceeding on this
extremely limited view of the purpose of §16(b), the
court reached two intermediate conclusions to justify its
ultimate determination of unconstitutionality. First, it
concluded that the plaintiffs had met their burden of
showing that judges who are aged seventy are not senile
and are capable of performing their work. In the court’s
words, “ ‘the legislative facts on which the classification
is apparently based could not reasonably be conceived to
be true by the governmental decisionmaker.’” Id. at
1014 (quoting Vance v. Bradley, 440 U.S. at 111).'* Sec-
ond, the court cited the provisions allowing judges over
age seventy to perform as “senior judges” as sufficient
proof that the state does not actually per-eive any rela-
tionship between advanced age and judicial incompe-
tence. 478 F.Supp. at 1014.'%
C.
Sound formal logic unquestionably inheres in the
district court’s analysis. The conclusion unerringly flows
from its premises. But the court erred in choosing as its
12. The district court apparently based this conclusion on find-
ings of fact numbered 70 and 71, which state:
70. The mere fact that a judge reaches the
chronological age of 70 does not affect his ability to per-
form his judicial duties and the vast majority of judges
reaching the age of 70 are capable of continuing to perform
those duties. See testimony of Doctors Obrist and Gorson.
and Exhibits P-1, P-2, P-3, and P-4.
71. Persons, such as judges, who achieve success in
learned professions are likely to retain their mental abilities
for considerably longer periods of time than the population
at large.
478 F.Supp. at 1006.
13. This conclusion apparently derives from finding of fact
numbered 73, which states: “The service of senior judges called
back to perform duties has been essential to the administration of
the court system in Pennsylvania in general and the court system in
Philadelphia in particular.” Id. at 1006.
12a
major premise that the basis of §16(b) is the inability of
judges over the age of seventy to perform their judicial
duties. Its subsequent analysis falters because the as-
sumed basis for the constitutional convention’s action
misses by a wide mark the reasons set forth in the report
of the Judiciary Subcommittee.
Moreover, by insisting that the appellants assume
the burden of proving a rational relationship between
the statute and a legitimate legislative goal, 478 F.Supp.
at 1014, the district judge failed to heed the precise
teachings of Vance v. Bradley:
In ordinary civil litigation, the question frequently is
which party has shown that a disputed historical
fact is more likely than not to be true. In an equal
protection case of this type, however, those chal-
lenging the legislative judgment must convince the
court that the legislative facts on which the classifi-
cation is apparently based could not reasonabiy be
conceived to be true by the governmental
decisionmaker [citations omitted]. As we have said
in a slightly different context:
“The District Court’s responsibility for
making ‘findings of fact’ certainly does not au-
thorize it to resolve conflicts in the evidence
against the legislature’s conclusion or even to
reject the legislative judgment on the basis that
without convincing statistics in the record to
support it, the legislative viewpoint constitutes
nothing more than what the District Court in
this case said was ‘pure speculation.’ ”
440 U.S. at 110-11 (quoting Brotherhood of Locomotive
Firemen & Enginemen v. Chicago, R.I. & P. R. Co., 393
U.S. 129. 138-39 (1968)). See also Murgia, 427 U.S. at
315-16.
In sum. the district court erroneously placed a bur-
den on the appellants to rebut a limited argument pre-
sented by the appellees. The correct approach would
13a
have been to require the appellees to prove that the
Pennsylvania Constitutional Convention had no reason-
able basis for believing the four reasons stated for the
adoption of the mandatory retirement provision. See
Vance v. Bradley, 440 U.S. at 112. We conclude that the
purposes actually given for the provision are legitimate
and do have a rational relationship to the mandatory re-
tirement age.
Reference Manual No. 5 listed four separate rea-
sons in support of the provision, not one of which corre-
sponds to the reason accepted by the district court as its
major premise. First, by utilizing senior judges in
part-time post-retirement service, the mandatory retire-
ment plan substantially increases judicial manpower bv
bringing in younger judges while retaining the part-time
services of willing and able retired judges. The legisla-
tive interest in reducing court congestion is certainly a
legitimate state interest. See Administrative Office of
Pennsylvania Courts, 1978 Annual Report 26, 27, 32.
Even the district court’s findings of fact demonstrate
that retired judges have contributed significantly to the
administration of justice in Pennsylvania. See note 13
supra. The conclusion is therefore inescapable that the
constitutional provision is rationally related to the legiti-
mate state interest specified in Reference Manual No. 5.
The second reason, that mandatory retirement
eliminates the unpleasantness of selectively removing
aged and disabled judges, and the third reason, that pre-
vention of harm by a few senile judges more than offsets
loss of judges who retain full powers past normal age.
may be considered together. We cannot say that it would
be irrational for Pennsylvania to be concerned with se-
nility among state judges. Removal of individual judges
for any reason has proved exceptional. During the ten
year period from 1969 through 1978, only one common
pleas court judge was removed from office for any rea-
son. Even if the removal process were largely effective.
the constitutional convention could have rationallv
14a
agreed that “one bad Judge can undo the efforts of a
hundred excellent Judges,” see note 7 supra, and then
concluded from this premise that mandatory retirement
would both remove the senile and place a limit on the
tenure of judges afflicted with other types of incompe-
tence. In addition, the convention could rationally place
a premium on avoiding the unpleasantness and public
humiliation associated with individual removal. See Ref-
erence Manual No. 5, supra note 1, at 203-04.
Fourth, the provision conforms to the recommenda-
tions of the American Bar Association, the Pennsylvania
Bar Association, and the National League of Cities, and
corresponds with the current trend toward mandatory
retirement at seventy in other public and private employ-
ment. If uniformed state patrol officers, see Murgia, 427
U.S. at 315, and foreign service personnel, see Vance v.
Bradley, 440 U.S. at 101, can be subjected to mandatory
retirement, we have little difficuity sustaining as rational
a retirement provision applicable to state judges. Indeed,
in trying to conform the age for retirement of judges
with the age for retirement of other state personnel, the
convention could have placed heavy emphasis on treat-
ing individuals of the same age in a similar manner.
It bears repetition that the convention’s judiciary
committee did not defend the amendment on the basis
‘accepted by the district court, that judges over seventy
are unable to perform judicial duties satisfactorily. We
therefore determine the district court's analysis to be de-
ficient because it rests on a fundamental mischar-
acterization of the purpose of §16(b). Pennsylvania has
attached special importance to increasing judicial man-
power, to eliminating the unpleasantness of removing
senile judges on an individual basis, to preventing the
harm to litigants and to the entire judicial system caused
bv a few senile judges, and to conforming with a trend
toward mandatory retirement in other private and public
emplovments, and we believe its assessment is rational.
“Whether or not individual judges mav agree with this
15a
assessment, it is not for the courts to reject it.” Vance v.
Bradley. 440 U.S. at 106.
As a ftederal court reviewing a state constitutional
provision under the equal protection clause, we mav not
demand pertection, Phillips Chemical Co. v. Dumas In-
dependent School Dist.. 361 U.S. 376, 385 (1960), or
“mathematical nicetv.” Dandridge v. Williams, 397 U.S.
471. 485 (1970) (quoting Lindsley v. Natural Carbonic
Gas Co., 220 U.S. 61, 78 (1911)). All we can do is deter-
mine whether the provision is rationally related to
achieving a legitimate state objective. Vance v. Bradley,
440 U.S. at 97. Appellees’ case condenses to their argu-
ment that judges over seventy are as reliable as judges
under seventy. But the truth of this proposition does not
establish a denial of equal protection. So long as a ration-
al basis can be identified, and we can identifv several
here, our task is at an end. We conclude that Article V,
§16(b) does not violate the equal protection ciause. '*
Il.
But the bulk of the district court’s analysis was its
acceptance of the appellees’ theorv that §16(b) violates
the due process clause. The court struck down the provi-
sion under a concept of substantive due process, de-
14. The district court also relied on the lower rates at which
senior judges are paid. characterizing the mandatory retirement
system as “merely a thinly veiled scheme for acquiring cheap judi-
cial labor.” 478 F.Supp. at 1015. Having concluded that mandatory
retirement per se does not violate the equal protection clause, we
need only note that the legislature could rationally conclude that the
state’s need for part-time judicial manpower could be filled by pay-
ing a per diem rate lower than the daily salary paid to full time
judges. In addition. the legislature could consider the state judicial
pensions available to most state judges. This is additional compen-
sation available to senior judges but not available to active judges.
Although we may agree that compensation for senior judges is not
vencrous, that fact is not relevant to a determination of whether re-
tirement at age seventy, per se, has a rational basis.
16a
scribed in some Supreme Court decisions in the early
seventies as “the irrebuttable presumption doctrine.”
This conceptual framework requires careful analysis for
proper application, as is now clear from Weinberger v.
Salfi, 422 U.S. 749 (1975), and Gurmankin v. Costanzo,
556 F.2d 184 (3d Cir. 1977).
A.
Of uneasy definition and uncertain status, the doc-
trine emanates from a series of Supreme Court decisions
trom 1971 to 1974. Bell v. Burson, 402 U.S. 535 (1971);
Stanley v. Illinois, 405 U.S. 645 (1972); Vlandis v.
Kline, 412 U.S. 441 (1973); United States Department
of Agriculture v. Murry, 413 U.S. 508 (1973); Cleveland
Board of Education v. LaFleur, 414 U.S. 632 (1974).
Each of these cases involved a statute containing rules
that denied a benefit or placed a burden on all individu-
als possessing a certain characteristic. The characteris-
tic is the basic fact from which a presumed fact is in-
ferred. These decisions held that if it “is not necessarily
or universally true in fact” that the basic fact implies the
presumed fact, Vlandis v. Kline, 412 U.S. at 452, then
the statute’s irrebuttable presumption denies due proc-
ess of law.'° Its very name suggests an analysis ground-
ed on formal logic, and a careful examination of the Su-
preme Court decisions that have applied it supports the
conclusion that the doctrine is but another way of stat-
ing that a presumed fact must be based on reason, and
that if a plaintiff demonstrates that the inference is not
“rationally related” to a legitimate legislative ‘classifica-
tion, the inference will not pass constitutional muster.
The decisions also suggest that in appropriate cases the
classification must serve a compelling state interest.
15. Note, The Irrebuttable Presumption Doctrine in the Su-
preme Court, 87 Harv. L, Rev. 1534, 1534-36 (1974).
17a
The five Supreme Court decisions that have em-
ploved the irrebuttable presumption analysis can be di-
vided into two categories. The first category includes
Bell v. Burson, 402 U.S. 535 (1971), Vlandis v. Kline,
412 U.S. 441 (1973), and United States Department of
Agriculture v. Murry, 413 U.S. 508 (1973), each of
which invalidated a classification adopted as an adminis-
trative device to serve as evidence of another classifica-
tion. In Bell, the Court examined a Georgia procedure
that mandated revocation of a driver’s license if he had
no liability insurance, was involved in an accident, and
failed to post cash or bond in the amount of a claimant’s
alleged damages. In holding that the procedure violated
the due process clause, the Court noted that before the
driver could actually be held liable for the claimant’s in-
juries, he would have to be adjudged negligent in the
Georgia courts. But by revoking his license prior to this
finding of negligence, the procedure “adjudicates impor-
tant interests of the licensees.” 402 U.S. at 539. Failure
to accord an opportunity to rebut the presumption of
fault thus violated the due process clause. By applying a
general presumption that uninsured drivers who are in-
volved in accidents will be held liable for those acci-
dents, the procedure classified an individual driver as
negligent even when “there is no reasonable possibility
of a judgment being rendered against the licensee. . . .”
Id. at 540 (emphasis added). The Court implicitly deter-
mined that the procedure lacked a rational relationship
to the designated objective.
In Vlandis, the Court examined a Connecticut stat-
utoryv presumption that all out of state applicants to state
colleges were nonresidents for purposes of calculating
tuition and would remain nonresidents for as long as
thev were students in Connecticut. The ultimate issue to
be determined for cach student was his or her residence,
but the statute authorized a short-cut to this determina-
tion without providing the students an opportunity to
controvert the conclusion. 412 U.S. at 445-46. Once
18a
again, the-procedure attempted to reach conclusions
about an individual’s status by examining a particular
set of circumstances that bore no necessary relationship
to the classification. The Court concluded that “[t]he
State can establish such reasonable criteria for in-state
status as to make virtually certain that students who are
not, in fact, bona fide residents of the state, but who
have come there solely for educational purposes, cannot
take advantage of the in-state rates.” Id. at 453-54 (em-
phasis added). As we read Vlandis, the Court’s decision
rests on its determination that the presumption of
nonresidence was not rationally related to the state’s
objective.
In Murry, the Court held invalid a regulation that
denied food stamps to any household consisting of one or
more persons over eighteen years of age who had been
claimed as a dependent on a federal income tax return
filed within the preceding two years by taxpayers who
were themselves ineligible to receive food stamps. The
legislative history of the provision indicated a congres-
sional concern that nonneedy households were partici-
pating in the food stamp program. 413 U.S. at 512-13.
The Court determined that the provision had no relation
to the actual need of the persons affected, id. at 513, and
concluded that “the deduction taken for the benefit of
the parent in the prior year is not a rational measure of
the need of a different household with which the child of
the tax-deducting parent lives. . ..” Id. at 514 (empha-
sis added). Once again, the Court used the rational basis
analysis.
Bell, Vlandis, and Murry should not be expanded
beyond their context. They involved administrative
short-cuts by which individuals were determined to be
ineligible for benefits. The ultimate criteria for eligibility
were unchallenged in all three cases; the challenges
were to the use of proxies to prove the ultimate criterion.
In each case, the Court struck down the procedure be-
cause the proxy was not reasonably related to the ulti-
19a
mate criterion. As noted earlier, the Pennsylvania consti-
tutional provision at issue in this case attempts to serve
four specific interests of the system, with the qualifica-
tions of each individual judge being unrelated to those
interests. The provision does not use age seventy to
reach a conclusion about individual judges. It uses that
age to further important system-wide objectives. When a
judge reaches age seventy, important interests of the
system demand that even competent judges retire.
Therefore, Bell, Viandis, and Murry are not controlling
here. See Weinberger v. Salfi, 422 U.S. at 771-72.
The second category contains Stanley v. Illinois,
405 U.S. 645 (1972), and Cleveland Board of Education
v. LaFleur, 414 U.S. 632 (1974). In both cases, the
Court noted that the procedures implicated fundamental
interests of the affected individuals. In Stanley, an
unwed father sought to obtain custody of his children
after their mother died. The statutory definition of
“parent” applicable to custody disputes excluded natural
tathers of illegitimate children, thus precluding Stanley,
who had never been judged unfit to have custody, from
obtaining custody. In striking the procedure, the major-
ity recognized that “|t]he Court has frequently empha-
sized the importance of the family.” 405 U.S. at 651.
Similarly, in LaFleur, the Court struck down regulations
requiring mandatory maternity leave for school teachers.
Again noting that “freedom of personal choice in matters
of marriage and family life is one of the liberties protect-
ed by the Due Process Clause of the Fourteenth Amend-
ment,” 414 U.S. at 639-40 (citations omitted), the Court
concluded that the overly restrictive maternity leave reg-
ulations “can constitute a heavy burden on the exercise
of these protected freedoms,” id. at 640, for which the
state could advance no justification. See also Turner v.
Department of Employment Security, 423 U.S. 44
(1975) (per curiam). Even assuming that the Court’s
analysis in Stanley and LeFleur employed “strict scruti-
20a
nv" rather than the rational basis standard, the existence
of fundamental interests in those decisions distinguish
them from this case.
We affirmed a district court order that employed the
irrebuttable presumption analysis in Gurmankin uv.
Constanzo, 556 F.2d 184 (3d Cir. 1977). We relied on
LaFleur in holding that a blind teacher was entitled to
demonstrate her competence to teach an English course
in the Philadelphia public schools. Although no funda-
mental interest or suspect class was implicated in
Gurmankin, the court reasoned that the school district's
policy of using blindness as an indication of competence
violated due process by not allowing Gurmankin to dem-
onstrate that she was actually competent. Id. at 187. In
effect, the policy was not rationally related to the legiti-
mate state goal of assuring teacher competence. “The
very point of this case is that |by] denying Gurmankin
the opportunity to take a qualifying exam, the defend-
ants deprived her of the opportunity to present evidence
of her qualifications.” Jd. at 187 n.5. Absent the funda-
mental interest involved in LaFleur, however,
Gurmankin is more akin to the first category of
irrebuttable presumption decisions, and should not con-
trol here because the qualifications of the judges are not
at issue under §16(b).
As with any aspect of substantive due process, a
court using the irrebuttable presumption doctrine must
apply the rational basis test, or in appropriate cases,
strict scrutiny. Otherwise, the courts would be resorting
to blatant “Lochnerism,” see Lochner v. New York, 198
U.S. 45 (1905), a concept that has been administered
suitable last rites and mercifully interred. See North Da-
kota State Board of Pharmacy v. Snyder’s Drug Stores,
_ Inc., 414 U.S. 156, 164-67 (1973); Lincoln Federal La-
Qla
bor Union v. Northwestern Iron & Metal Co., 335 U.S.
525, 536 (1949),'® |
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 prophylactic provisions, and
would be directly contrary to our holding in Mourn-
ing |v. Family Publications Service, Inc., 411 U.S.
356 (1973)]. Nor is the question whether the provi-
sion filters out a substantial part of the class which
caused congressional concern, or whether it filters
16. In Lincoln Federal Labor Union, in which the Court
upheld state laws prohibiting union security agreements, the Court
noted:
This Court beginning at least as early as 1934, when
|Nebbia v. New York, 291 U.S. 502 (1934] was decided,
has steadily rejected the due process philosophy enunci-
ated in the |Adair v. United States, 208 U.S. 161 (1908)
and Coppage v. Kansas, 236 U.S. 1 (1915)] line of cases. In
doing so it has consciously returned closer and closer to
the earlier constitutional principle that states have power
to legislate against what are found to be injurious practices
in their internal commercial and business affairs, so long
as their laws do not run afoul of some specific federal con-
stitutional prohibition, or of some valid federal law. |cita-
tions omitted]. Under this constitutional doctrine the due
process clause is no longer to be so broadly construed that
the Congress and state legislatures are put in a strait jacket
when they attempt to suppress business and industrial
conditions which they regard as offensive to the public
welfare.
335 U.S. at 536-37.
all
22a
out more members of the class than nonmembers.
The question is whether Congress, its concern hav-
ing 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 qualification would protect against its
occurrence, and that the expense and _ other
ditticulties of individual determinations justified the
inherent imprecision of a prophylactic rule.
See also Usery v. Turner Elkhorn Mining Co., 428 U.S.
1, 23-24 (1976); Marshall v. United States, 414 US.
417, 427-28 (1974); Flemming v. Nestor, 363 U.S. 603,
611 (1960).'’ We must determine whether the Com-
17. We are not unaware of the confusion caused by the
irrebuttable presumption doctrine. particularly with regard to selec-
tion of the appropriate standard of judicial review of legislation at-
tacked under the doctrine. The United States Court of Appeals for
the Seventh Circuit. in a case virtually identical to this one, has con-
cluded that the irrebuttable presumption analysis has been tacitly
abandoned by the Supreme Court. Trafelet v. Thompson, 594 F.2d
623. 629-30 (7th Cir.). cert. denied, —— U.S. . 48 U.S.L.W.
3239 (Oct. 1, 1979). The Court of Appeals for the Second Circuit
has deemed the doctrine merged into the equal protection clause
except with respect to fundamental interests or suspect clas-
silications. Johnson v. Lefkowitz. 566 F.2d 866, 869 (2d Cir. 1977).
In Gurmankin v. Constanzo, 556 F.2d 184 (3d Cir. 1977). we
indicated that the Supreme Court in Weinberger had distinguished
LaFleur because Weinberger involved government benefits. Id. at
187 n.d. Although this case does not involve government benefits.
we are convinced that Weinberger’s standard of review applies be-
cause it merely restates the well-accepted standard of review tor due
process challenges. In the context of government economic regula-
tion, see, e.g... Usery v. Turner Elkhorn Mining Co., 428 U.S. 1.
23-24 (1976), government benefit payments, see. ¢.g.. Flemming v.
Nestor, 363 U.S. 603, 611 (1960). and legislation that is difficult to
classify. see, e.g., Marshall v. United States, 414 U.S. 417. 427-28
(1974), the Court has applied the rational basis test. Even if we as-
sume that mandatory retirement legislation is sui generis. cf. San
Antonio Independent School District ¢. Rodriguez, 411 U.S. 1. 18
(1973) (equal protection attack on Texas school financing svstem
“in significant aspects is sui generis”), the rational basis test is still
appropriate absent a fundamental interest or suspect class.
23a
monwealth of Pennsylvania could have rationally con-
cluded that a mandatory retirement age of seventy for its
judges would promote the policies specified in the legis-
lative history of Article V, §16(b).'*
B.
In applying the irrebuttable presumption doctrine to
this case the district court assumed erroneously that the
major, if not the only, justification for §16(b) is the de-
termination that judges over age seventy are unfit to
judge. It then reasoned that because this presumed fact
is not necessarily true, the provision offends the due
process clause. The district court’s logic is again unas-
sailable, but its understanding of the constitutional con-
vention’s reasons for §16(b) is imperfect. This error re-
sults in no small measure from the failure of appellants
to defend properly, before this court and the trial court.
the action of Pennsylvania’s Constitutional Convention.
This failure is evident from the district court’s discussion
of what it described as “several lesser justifications [ad-
vanced by appellants] for the mandatory retirement
rule.”
18. Were we to deem classifications based on age subject to
strict scrutiny, we would place a wide range of state legislation in
question. Any statute that uses age as a qualification creates an
irrebuttable presumption that persons over or under the specified
age are unqualified. E.g., minimum ages for obtaining a driver's li-
cense, consumption of alcoholic beverages, and child employment.
A further anomaly would arise because the United States Constitu-
tion itself creates irrebuttable presumptions based on age. See U.S.
Const. Art. I, §2, cl. 2 (minimum age of twenty-five to serve in the
House of Representatives); id. §3, cl. 3 (minimum age of thirty to
serve in the Senate); id. Art. II, §1, cl. 5 (minimum age of thirty-five
to serve as President); id. Amend. XXVI, §1 (minimum age of eigh-
teen to vote). Cf. id. “Amend. XXII, §1 (maximum of two terms as
President). The history and widespread use of age classifications, as
well as their constitutional sanction, militate against strict scrutiny
of such classifications.
24a
First, the Commonwealth submits that the present
system serves the purpose of “updating the judici-
ary by infusion of ‘new blood’ [knowledgeable] in
modern trends in the law.” The defendants have of-
fered no evidence, however, to show that elderly
judges are any less cognizant of modern legal
trends than their younger counterparts. In fact,
quite the opposite may be true. The record contains
numerous references to the benefits which the judi-
cial system derives from the wisdom and experience
of former and retired judges who serve as senior
judges. See, e.g., Statement of Chief Justice Eagen
Relative to Amendment of Pa.R.J.A. 701(a), October
5, 1977; see also Exhibit P-6. Absent persuasive
supporting evidence, an intrusion on constitutional
rights cannot be justified by the proposition that
new blood is better than old blood.
The state further submits that the present sys-
tem of mandatory retirement provides opportunities
for elevation to the bench; avoids the difficulty of
determining an individual judge’s competence; and
provides certain notice of upcoming judicial vacan-
cies. While each of these purposes may be arguably
legitimate, they are all matters of mere administra-
tive convenience. Each can be amply served by
other measures which do not infringe on constitu-
tionally protected rights. “|/A]dministrative conven-
ience alone is insufficient to make valid what other-
wise is a violation of due process of law.” LaFleur,
supra, 414 U.S. at 647, 94 S.Ct. at 799.
478 F.Supp. at. 1010. Although appellants repeat these
and similar arguments before us, fortified with citations
of case law, see Brief for Appellants at 17,-these argu-
ments miss the important issue in this case: Is the man-
datory retirement age rationally related to the accom-
plishment of any legitimate state objective?
25a
C.
The basic error committed by the district court in its
due process discussion was the same one committed in
its equal protection discussion; it proceeded on the
premise that “(t]he principal basis advanced by the Com-
monwealth for the rule is the removal of unfit judges
from the bench by means of mandatory retirement at
age seventy.” 478 F.Supp. at 1008. We have previously
demonstrated in Part II, supra, that the premise on
which the court relied is invalid.
In reviewing §16(b) under the due process clause,
we must examine all legitimate objectives that the com-
monwealth could have considered to determine if any of
them are rationally served by the provision. The district
court’s analysis of but one of the objectives, without con-
sidering the dbjectives explicitly stated in the reports of
the drafters, does not comply with this precept. We have
examined the provision in light of the four purposes
contained in the Committee Report, and for the reasons
detailed in Part II, supra, we conclude that §16(b) is ra-
tionally related to legitimate legislative objectives. '®
IV.
Accordingly, we will reverse the judgment of the
district court and remand these proceedings with a di-
rection to enter judgment in favor of the appellants.
19. Decisions of other courts support both of our conclusions,
‘hat mandatory retirement for state court judges violates neither the
jue process clause nor the equal protection clause. Trafelet v.
Thompson, 594 F.2d 623 (7th Cir.), cert. denied, —— U.S. ——, 48
U.S.L.W. 3239 (Oct. 1, 1979); Rubino v. Ghezzi, 512 F.2d 431 (2d
Cir. 1975) (per curiam); Boughton v. Price, 70 Idaho 243, 215 P.2d
286 (1950); O’Neil v. Baine, 568 S.W.2d 761 (Mo. 1978); Nelson v.
Miller, 25 Utah 2d 277, 480 P.2d 467 (1971); Aronstam uv.
Cashman, 132 Vt. 538, 325 A.2d 361 (1974).
- 7
A True Copy:
Teste:
sf
Clerk of the United States Court of Appeals
for the Third Circuit
27a
APPENDIX B
UNITED STATES DISTRICT COURT
Civ. A. No. 78-1418.
E. D. PENNSYLVANIA SEPTEMBER 21, 1979
EDWIN S. MALMED, STANLEY L. KUBACKI,
GREGORY G. LAGAKOS, JOSEPH T. MURPHY
and JAMES L. STERN,
Plaintiffs,
vs.
RICHARD L. THORNBURGH, Individually and
as Governor of Pennsylvania, ETHEL D. ALLEN,
Individually and as Secretary of the Commonwealth of
Pennsylvania, ROBERT E. CASEY, Individually and
as Treasurer of the Commonwealth of Pennsylvania,
and ALEXANDER F. BARBIERI, Individually and as
Pennsylvania State Court Administrator,
Defendants.
Stephen M. Feldman, Philadelphia, Pa., for plaintiffs.
Joseph K. Hegedus, Deputy Atty. Gen., Harrisburg, Pa.,
for Thornburgh, Allen and Casey.
Jonathan Vipond, III, Philadelphia, Pa., for Barbieri.
ADJUDICATION
DITTER, District Judge.
28a
Plaintiffs in this case are five judges of the Court of
Common Pleas of the First Judicial District of Pennsyl-
vania, which consists of the County of Philadelphia. They
brought this action to challenge the Pennsylvania Consti-
tution’s requirement that all state court justices, judges,
and justices of the peace retire at age 70. The complaint
charges that this provision violates the plaintiffs’ rights to
both due process and equal protection of the laws as se-
cured by the Constitution of the United States. Plaintiffs
ask me to declare that the mandatory retirement section
of the Pennsylvania Constitution is null and void and that
the defendant state officials should be enjoined from en-
forcing it.
[1] This case was tried without a jury. After considering
all the evidence, as well as the briefs and arguments of
counsel, I conclude that the first sentence of Article V,
Section 16(b) of the Pennsylvania Constitution is in con-
flict with both the due process and equal protection clauses
of the Fourteenth Amendment to the United States Consti-
tution, at least insofar as it applies to judges of the Courts
of Common Pleas. This provision is therefore null and
void, and its enforcement, as to Common Pleas Court
judges, must be enjoined.
My holding is based upon the following
FINDINGS OF FACT
1. Plaintiff, Edwin S$. Malmed, is a Judge of the Court
of Common Pleas of the First Judicial District of Pennsy]-
vania, composed of the County of Philadelphia, and was
first appointed a Judge of the Court of Common Pleas on
December 30, 1971. Plaintiff Malmed holds office by virtue
of election in November, 1973, and pursuant a Commission
issued by the Governor of Pennsylvania on December 10,
29a
1973, which certified plaintiff Malmed’s right to hold said
office from the first Monday of January, 1974.’
2. Plaintiff Malmed will attain his seventieth birthday
on January 2, 1982.
3. Plaintiff, Stanley L. Kubacki, is a Judge of the Court
of Common Pleas of the First Judicial District of Pennsyl-
vania, composed of the County of Philadelphia, and was
first appointed a Judge of the Court of Common Pleas on
December 30, 1971. Plaintiff Kubacki holds office by
virtue of election in November, 1973, and pursuant to a
Commission issued by the Governor of Pennsylvania on
December 10, 1973, which certified plaintiff Kubacki’s right
to hold said office from the first Monday of January, 1974.
4, Plaintiff Kubacki will attain his seventieth birthday
on August 25, 1985.
5. Plaintiff, Gregory G. Lagakos, is a Judge of the Court
of Common Pleas of the First Judicial District of Pennsyl-
vania, composed of the County of Philadelphia. Plaintiff
Lagakos was appointed as a Judge of the County Court of
Philadelphia on August 26, 1965, and elected in November,
1965, for a ten year term commencing in January 1966. On
January 1, 1969, by virtue of an amendment of the Penn-
sylvania Constitution, plaintiff Lagakos became a Judge of
the Court of Common Pleas for a term to be completed in
January 1976. Plaintiff Lagakos was retained in an elec-
tion in November, 1975, and currently holds office by virtue
of such election and pursuant to a Commission issued by
the Governor of Pennsylvania on December 17, 1975, which
1. By a stipulation of counsel dated April 16, 1979, it was agreed
that certain of the facts set forth in these findings are true and
correct. In most instances, these agreed findings have been adopted
verbatim.
30a
certified plaintiff Lagakos’ right to hold said office from the
first Monday of January, 1976.
6. Plaintiff Lagakos will attain his seventieth birthday
on October 16, 1982.
7. Plaintiff, Joseph T. Murphy, is a Judge of the Court
of Common Pleas of the First Judicial District of Pennsyl-
vania composed of the County of Philadelphia. Plaintiff
Murphy was appointed as a Judge of the Municipal Court
of Philadelphia County on December 21, 1968. In No-
vember, 1969, plaintiff Murphy was elected as a Judge of
the Municipal Court of Philadelphia County for a six-year
term commencing in January, 1970. On December 31,
1971, plaintiff Murphy was appointed as Judge of the Court
of Common Pleas. Plaintiff Murphy currently holds office
by virtue of election in November, 1973, and pursuant to
a Commission issued by the Governor of Pennsylvania on
December 10, 1973, which certified plaintiff Murphy's right
to hold said office from the first Monday of January, 1974.
8. Plaintiff Murphy will attain his seventieth birthday on
October 21, 1980.
9. Plaintiff, James L. Stern, is a Judge of the Court of
Common Pleas of the First Judicial District of Pennsy]-
vania composed of the County of Philadelphia. Plaintiff
Stern was appointed as a Judge of the County of Phila-
delphia in June, 1964, and elected, in November, 1965, for
a ten-year term commencing in January, 1966. On Jan-
uary 1, 1969, by virtue of an amendment of the Pennsyl-
vania Constitution, plaintiff Stern became a Judge of the
Court of Common Pleas for a term to be completed in
January 1976. Plaintiff Stern was retained in an election
in November 1975, and currently holds office by virtue of
such election and pursuant to a Commission issued by the
Governor of Pennsylvania on December 17, 1975, which
3la
certified his right to hold said office from the first Monday
of January 1976.
10. Plaintiff Stern will attain his seventieth birthday on
January 26, 1980.
11. Defendant Richard L. Thornburg is the Governor
of the Commonwealth of Pennsylvania.
12. Defendant Ethel D. Allen is the Secretary of the
Commonwealth of Pennsylvania.
13. Defendant Robert E. Casey is the Treasurer of the
Commonwealth of Pennsylvania.
14. Defendant Alexander F. Barbieri is the Court Ad-
ministrator of the Commonwealth of Pennsylvania.
15. Article V, Section 15 of the Pennsylvania Constitu-
tion (Adopted in 1968 to be effective January 1, 1969)
provides for the tenure and election of judges and justices
as follows:
(a) The regular term of office of justices and judges
shall be ten years and the regular term of office for
judges of the municipal court and traffic court in
the City of Philadelphia and of justices of the peace
shall be six years. The tenure of any justice or
judge shall not be affected by changes in judicial
districts or by reduction in the number of judges.
(b) A justice or judge elected under section thirteen
(a), appointed under section thirteen (d) or re-
tained under this section fifteen (b) may file a
declaration of candidacy for retention election with
the officer of the Commonwealth who under law
shall have supervision over elections on or before
the first Monday of January of the year in which
his term of office expires. If no declaration is filed,
32a
a vacancy shall exist upon the expiration of the
term of office of such justice or judge, to be filled
by election under section thirteen (a) or by ap-
pointment under section thirteen (d) if applicable.
If a justice or judge files a declaration, his name
shall be submitted to the electors without party
designation, on a separate judicial ballot or in a
separate column on voting machines, at the munici-
pal election immediately preceding the expiration of
the term of office of the justice or judge, to deter-
mine only the question whether he shall be retained
in office. If a majority is against retention, a va-
cancy shall exist upon the expiration of his term of
office, to be filled by appointment under section
thirteen (b) or under section thirteen (d) if ap-
plicable. If a majority favors retention, the jus-
tice or judge shall serve for the regular term of
office provided herein, unless sooner removed or
retired. At the expiration of each term a justice or
judge shall be eligible for retention as provided
herein, subject only to the retirement provisions of
his article.
16. Article V, Section 16(b) of the Pennsylvania Con-
stitution (Adopted in 1968) to be effective January 1,
1969) provides: ;
(b) Justices, judges and justices of the peace shall be
retired upon attaining the age of seventy years.
Former and retired justices, judges and justices of
the peace shall receive such compensation as shall
be provided by law. No compensation shall be
paid to any justice, judge or justice of the peace
who is suspended or removed from office under
section eighteen of this article or under article six.
33a
17. Defendant Thornburgh in accordance with Article
V, Section 13(b) of the Pennsylvania Constitution nomi-
nates and, with the advice and consent of two-thirds of
members elected to the Senate, appoints a justice or judge
to fill vacancy in the office of justice or judge. Act of
April 9, 1929, P.L. 177, No. 175 §207.1 as added to by
Act of November 8, 1976, P.L. 1109, No. 227 §2, 71 P.S.
§67.1. Any judicial office previously held by a judge or
justice who has attained seventy years of age has been
considered to be a vacancy to be filled pursuant to this
gubernatorial appointment power.
18. Defendant Thornburgh issues a commission to each
person elected as a judge or justice. Act of June 3, 1937,
P.L. 1333, art. XIV, §1415, as amended Act of May 18,
1945, P.L. 694, No. 298, §1, 25 P.S. §3165. Defendant
Thornburgh issues commissions to persons elected to ju-
dicial offices made vacant by a judge or justice who has
attained seventy years of age.
19. Defendant Allen is responsible for sending to the
county board of elections of each county in Pennsylvania
a written notice designating all the offices, including judi-
cial offices, for which candidates are to be nominated. Act
of June 3, 1937, P.L. 1333, art. IX, §905. as amended Act
of August 13, 1963, P.L. 707, §10, 25 P.S. §2865. De-
fendant Allen designates to be filled by election, any va-
cancy in a judicial office caused by a judge or justice who
attains seventy years of age.
20. Defendant Allen is responsible for certifying to
county boards of elections the laws of candidates for judi-
cial office. Act of June 3, 1937, P.L. 1333, art. II, §201,
25 P.S. §2621. Defendant Allen certifies, as a judicial va-
cancy, the office of any judge or justice who has attained
seventy years of age. Defendant Allen will not certify, for
34a
inclusion on the ballot of a retention election, any judge
or justice who has attained seven years of age.
21. Defendant Casey is responsible for the payment of
all salaries established by law, including that of any judge
or justice. Act of March 30, 1811, P.L. 145, 5 Sm.L. 228,
§8, as amended, Act of July 18, 1974, P.L. 472, No. 168,
§1, 72 P.S. §4521. Defendant Casey will not continue to
pay a salary to any judge or justice who attains seventy
years of age. Defendant Casey will, however, commence
to dispense to any judge or justice who attains seventy
years of age any funds to which such judge or justice may
be entitled under the State Employees’ Retirement Code,
71 Pa.C.S.A. §1501 et seq.
22. Defendant Barbieri is responsible for the mainte-
nance of central records relating to the qualifications, em-
ployment status, basis of compensation and other person-
nel information of all personnel of the Pennsylvania judicial
system compensated in whole or in part through funds
appropriated to the judicial system pursuant to Rule 504
(10) of the Pennsylvania Rules of Judicial Administra-
tion. Defendant Barbieri authorizes the Treasurer of the
Commonwealth to discontinue the salary of any judge or
justice who attains seventy years of age, and thereby
causes such judge or justice to be removed from the State
Judicial payroll. Defendant Barbieri also certifies to the
Governor and to the Secretary of the Commonwealth a
vacancy in any judicial office held by a judge or justice
who attains seventy years of age.
23. No non-judicial elected official in Pennsylvania is
subject to a mandatory retirement age.
24, Section 8 of the Schedule to Article 5 of the Penn-
sylvania Constitution (Adopted in 1968 to be effective
35a
January 1, 1969) the so-called “grandfather clause,” pro-
vides that “[n]otwithstanding any provision in the article,
a present justice, judge or justice of the peace may com-
plete his term of office.” The term “present” refers to the
effective date of the provision.
25. Plaintiffs herein cannot avail themselves of the so-
called “grandfather clause” to avoid retirement at age 70.
Only those justices and judges elected prior to January 1,
1969, namely Chief Justice Eagen, Justice O’Brien and
Justice Roberts of the Pennsylvania Supreme Court are
subject to the so-called “grandfather clause.” '
26. Article V, Section 18 of the Pennsylvania Constitu-
tion (Adopted in 1968 to be effective January 1, 1969) pro-
vides for the creation of a Judicial Inquiry and Review
Board. The Board considers grounds for suspension, re-
moval, discipline, or compulsory retirement of a justice or
judge for prohibited activities, including a violation of any
legal or judicial canon, misconduct in office, neglect of
duty, failure to perform his duties, conduct which preju-
dices the proper administration of justice or brings the
judicial office into disrepute, or for disability seriously in-
terfering with the performance of his duties. Pursuant to
the above provision, the Pennsylvania Supreme Court
Promulgated Rules of Procedure Governing the Judicial
Inquiry and Review Board, a copy of which is marked Ex-
hibit P-8.
27. Pursuant to the present provisions of Article V, Sec-
tion 16(b) the Pennsylvania Constitution each of the plain-
tiffs would be retired from office on the following dates
notwithstanding the fact that none of them will have com-
pleted the term of office for which he was elected:
ee a at ae January 2, 1982
ES, Ch ss abc va ad wena teden August 25, 1985
Re ce mes Ps October 16, 1982
rere October 21, 1980
RT SAGs Vale kes Uclebea as van January 26, 1980
28. If each of the plaintiffs is forced to retire upon the
attainment of his seventieth birthday, defendant Thorn-
burgh will declare a vacancy in that judge’s office, will
consider himself free to appoint a new judge to fill that
vacancy, and will issue a commission to any person ap-
pointed and confirmed to fill that vacancy.
29. If each of the plaintiffs is forced to retire upon the
attainment of his seventieth birthday, defendant Allen will
notify the Board of Elections of Philadelphia County that
the judge’s office is vacant and is one for which candidates
are to be nominated, and further defendant Allen will not
certify for inclusion on the ballot for retention any of the
plaintiffs after he has reached his seventieth birthday.
30. If each of the plaintiffs is forced to retire upon the
attainment of his seventieth birthday, defendant Casey will
not pay him a salary for full-time judicial service.
31. If each of the plaintiffs is forced to retire upon the
attainment of his seventieth birthday, defendant Barbieri
will cause said judge to be removed from the State Judi-
cial payroll and will certify to the Governor and Secretary
of the Commonwealth a vacancy in that judge’s office.
32. Each of the plaintiffs is presently physically and
mentally capable of performing and fulfilling his judicial
duties.
33. Chief Justice Eagen, age 71, Justice O’Brien, age 75,
and Justice Roberts, age 72, are all presently in active serv-
ice on the Supreme Court of Pennsylvania under the grand-
37a
father clause and will not be required to retire until the
end of their respective terms. The term of office and ac-
tive service of Chief Justice Eagen expires on the first
Monday in January 1981, for Justice O’Brien in 1983 and
Justice Roberts in 1984.
34, There are presently 54 senior judges in the Com-
monwealth of Pennsylvania, of whom 47 are 70 years of age
or more. There are approximately 300 active judges in
the Courts of Common Pleas, Commonwealth Court, Su-
perior Court, and Supreme Court. See 1978 Report, Ad-
ministrative Office of Pennsylvania Courts.
35. Between January 1, 1969, and the present, every
judge who has reached the age of 70 while in office, and
requested assignment to duties as a senior judge was ac-
cepted as a senior judge and served as a senior judge.
36. From 1968 to the present there has been and con-
tinues to be a shortage of judicial manpower in Pennsyl-
vania.
37. Senior judges like active judges can be assigned
duties in any county in the Commonwealth.
38. Judge Lipez of the Court of Common Pleas of Ly-
coming County who has been retired because of reaching
the age of 70 has been assigned duties as a Senior Judge
on the Superior Court of Pennsylvania, and the following
Superior Court Judges who have been retired because of
reaching the age of 70 have been assigned duties as senior
judges on the Superior Court:
J. Sydney Hoffman, age 70.
Harry M. Montgomery, age 77.
Robert VanDerVoort, age 70.
G. Harold Watkins, age 76.
38a
39. The method used for determining whether a judge
who so desires may serve as a senior judge is set forth in
Pennsylvania Rule of Judicial Administration 701.
40. Prior to the 1968 amendment to the Judiciary Ar-
ticle (Article V) of the Pennsylvania Constitution there
was no conipulsory retirement of judges in Pennsylvania.
41. Prior to 1965 there was no provision in the law of
Pennsylvania for the service of former judges after their
retirement.
42. On November 2, 1965, the Constitution of 1874 was
amended by adding Section 18 to Article V thereof which
provided:
The Chief Justice of the Supreme Court may designate
and assign former judges, learned in the law, who are
willing so to do, who have served at least one term and
who have not been defeated for re-election, to the office
of judge of any court of record, to temporarily sit in the
courts of any judicial district for the disposal of business
under such circumstances and subject to such qualifica-
tions and conditions as the General Assembly may pre-
scribe.
43. Pursuant to the provisions of Article V, Section 18
of the Pennsylvania Constitution as amended November 2,
1965, the Pennsylvania legislature passed the Act of Au-
gust 31, 1966, P.L. 47 §§1 et seq., 17 P.S. §§790.101 et seq.
(Supp.) which provides that any former judge who has
served at least one term and who has not been defeated
for reelection may be assigned by the Chief Justice of the
Supreme Court to sit temporarily as a judge in any judi-
cial district. The president judge of any court of record
may request the services of one or more former judges
39a
when he deems it “necessary for the purpose of expediting
the business of the said court.” 17 P.S. §790.-104.
44, The Supreme Court of Pennsylvania adopted Su-
preme Court Rule 79, effective October 10, 1966, which
provides as follows:
Any former Judge learned in the law who has served
at least one term and has not been defeated for reelec-
tion and who shall file with the Prothonotary of the Su-
preme Court, at any convenient time after the effective
date of this Rule, a statement of the ensuing weeks or
months during which he is willing to be assigned to sit
in the Courts of any judicial district for the disposal of
its business, and certifies that he is not engaged in the
practice of law or in any activity incompatible with Ju-
dicial office and does not intend to engage in the prac-
tice of law in the future, may be designated and assigned
by the Chief Justice of the Supreme Court to the office
of Judge of any court of record to sit temporarily and as
directed by the Chief Justice in the courts of any such
judicial districts for the disposal of such business as may
arise during the period of assignment, provided that no
former Judge shall be assigned to any district while any
Judge thereof is assigned to and presiding in another
district under any of the provisions of any Act of As-
sembly.
45. Article V, Section 16(c) of the Pennsylvania Con-
stitution (Adopted in 1968 to be effective January 1, 1969)
provides:
(c) A former or retired justice or judge may, with his
consent, be assigned by the Supreme Court on temporary
judicial service as may be prescribed by rule of the Su-
preme Court.
40a
46. By Order of the Supreme Court dated March 15,
1972, Supreme Court Rule 79 was renumbered as Penn-
sylvania Rule of Judicial Administration 701.
47, The current annual salary for judges of the Courts
of Common Pleas on active service is $45,000 per year.
48. Included in the benefits which judges of the courts
of Common Pleas on active service enjoy are:
(a) Sick leave with pay.
(b) Paid Vacation.
(c) Pay regardless of whether the judge is in chambers
or in court.
49. The current compensation for senior judges assigned
to duties by the Court Administrator is $125 per court
day for days actually worked. Therefore, no compensation
is provided for days spent working in chambers.
50. Senior judges called back to perform duties receive
no paid sick days or paid vacation.
51. Per diem payments to senior judges are not con-
sidered compensation under the State Employees retire-
ment of 1974, and therefore, do not increase the pension
of such judges.
52. The availability of funds to pay senior judges called
back to perform duties is dependent on the appropriation
of funds for that purpose by the legislature.
53. During the past several years the legislative appro-
priation for the payment of the per diem salary of senior
judges called back for temporary service has not been
large enough to pay the per diem salary for all the days
of service of qualified and available senior judges whose
4la
services were needed by the courts of Common Pleas and
as a result many senior judges worked part of the time for
no compensation at all.
54. During the course of their active service judges in
Pennsylvania are required to make contributions to the
pension fund pursuant to 71 Pa.C.S.A. §§5101 et seq. and
an amount of money is deducted from each judge's
monthly salary for that purpose.
55. During the course of their active service as judges
deductions have been made from the monthly salary of
the plaintiffs for contribution to the pension fund.
56. Contributions made by the judges, including the
plaintiffs, appreciate at the rate of four percent interest
per year compounded annually.
57. The money which is deducted from a judge’s salary
for contribution to the pension fund is considered income
to that judge for federal income tax purposes and, there-
fore, he pays tax on that money in the year he earns it.
58. At the time that each of the plaintiffs reaches his
seventieth birthday he will have total accumulated deduc-
tions from his salary in the pension fund as follows:
Pee ererer ere ey se $ 57,054
NN 54 vpn A's oi) ok ah we eS 85,967
ee rere see 106,292
EY SO oy oi ens oho os enews 122,681
59. At the time that each of the plaintiffs reaches his
seventieth birthday he will have acquired a vested interest
in pension funds contributed by the Commonwealth, the
present value of which will be as follows as of the seven-
42a
tieth birthday of each plaintiff (caiculated as of April
1979):
TORT ee Pee reer $ 96,568
RCS AP a 146,667
SE ae ee 127,894
a cy ch Nain godt ais 6 oh 152,210
60. The amount of money contributed to the pension
fund by the Commonwealth for the benefit of any judge
increases with each additional year of credit service at-
tributed to that judge.
61. Upon retirement each judge, including the plain-
tiffs, will be given various options with regard to receiving
the pension funds to which he is entitled. These options
include the right to withdraw in a lump sum an amount of
money not to exceed his total accumulated personal con-
tribution to the pension fund and to receive annuities in
varying amounts for his life and/or the life of a designated
beneficiary at his death. These options are explained in
the documents marked as P-9, P-10, P-11, and P-12, the
only variable for different judges being the amount of
money which depends on the individual judge’s years of
credited service, the amount of his salary during his active
service, his life expectancy at retirement, and the life ex-
pectancy of his beneficiary.
62. The monthly payment which a judge and/or his
beneficiary will receive under any given annuity will be
larger, the shorter the life expectancy of the judge and/or
his beneficiary at the time of the judge's retirement.
63. The larger the amount that the judge receives from
his pension during his lifetime, the less that his beneficiary
will receive either in a lump sum or monthly payments
after the judge's death.
43a
64. Exhibit P-9 sets forth the pension benefits to which
Judge Malmed will be entitled upon reaching age 70 un-
der various options calculated as of April 1979.
65. Exhibit P-10 sets forth the pension benefits to which
Judge Stern will be entitled upon reaching age 70 under
various options calculated as of April 1979.
66. Exhibit P-11 sets forth the pension benefits to which
Judge Kubacki will be entitled upon reaching age 70 un-
der various uptions calculated as of April 1979.
67. Exhibit P-12 sets forth the pension benefits to which
Judge Lagakos will be entitled upon reaching age 70 under
various options calculated as of April 1979.
68. Judges under 70 on active service acquire additional
retirement benefits with added service. On the other hand,
judges over 70 who return to temporary judicial service
not only do not acquire additional retirement benefits dur-
ing the period of their post retirement service, pension pay-
ments received by them during such service actually di-
minish the pension estate available for beneficiaries after
the judge’s death.
Stipulation 52, 56-71.
69. The compensation of a judge over 70 who returns
to temporary judicial service is limited by 42 Pa.C.S.A.
§3154(c) to an amount which together with the payments
he receives from the pension fund will not exceed $45,000.
70. The mere fact that a judge reaches the chronological
age of 70 does not affect his ability to perform his judicial
duties and the vast majority of judges reaching the age of
70 are capable of continuing to perform those duties. See
testimony of Doctors Obrist and Gorson, and Exhibits P-1,
P-2, P-3, and P-4.
44a
71. Persons, such as judges, who achieve success in
learned professions are likely to retain their mental abilities
for considerably longer periods of time than the popula-
tion at large.
72. Individual determinations of the ability of individual
judges age 70 and over could effectively filter out those
judges who because of physical or mental disabilities are
unable properly to perform their judicial functions.
73. The service of senior judges called back to perform
duties has been essential to the administration of the court
system in Pennsylvania in general and the court system in
Philadelphia in particular.
74, Judges under 70 on active service receive an annual
salary of $48,000, which when weekend, holidays and vaca-
tions are considered amounts to $200 per work day. On
the other hand, judges over 70 who return to temporary
judicial service receive only $125 per work day, and if such
judges worked five days a week for 52 weeks, they would
at the most earn $32,500 per year.
Stipulation 48, 50. Exhibit P-6 at pp. 23-25.
75. Judges under 70 on active service receive their judi-
cial salary regardless of whether they are performing duties
in court or in chambers and regardless of whether they are
attending a judicial conference. On the other hand, judges
over 70 who return to temporary judicial service are paid
only for days in court and, therefore, are not paid for cham-
bers time or time spent at judicial conferences.
Stipulation {{49(c), 50. Exhibit P-6 at pp. —. Testi-
mony of President Judge Bradley.
76. Judges under 70 on active service receive their ju-
dicial salary for unlimited periods of time while they are
45a
unable to work because of illness so long as it appears that
they will at some future time be able to return to their
judicial duties. On the other hand, judges over 70 who
return to temporary judicial service do not receive even a
single paid sick day.
Stipulation [{49(a), 51. Testimony of President Judge
Bradley.
77. Judges under 70 on active service receive paid vaca-
tion time. On the other hand, judges over 70 who return
to temporary judicial service receive no paid vacation time.
Stipulation {49(b), 51. Testimony of President Judge
Bradley.
DISCUSSION
Plaintiff's attack on the state's mandatory retirement
system is double barrelled. They argue that the chal-
lenged provision violates both the due process and the
equal protection clauses of the Fourteenth Amendment. I
am in complete agreement with their position.
I. DUE PROCESS
Plaintiffs contend that the mandatory retirement provi-
sion of the Pennsylvania Constitution violates their right
to due process because it creates an “irrebuttable presump-
tion” of incompetence to perform judicial duties. No chal-
lenge is raised to the legitimacy of the state’s interest in in-
suring a competent judiciary. On the contrary, plaintiffs
maintain that rather than being automatically retired at 70,
judges * should be given individual opportunities to dem-
onstrate their continued competence and ability.
2. The mandatory retirement rule applies to “[j]ustices, judges,
and justices of the peace.” My holding in this opinion, however,
is limited to judges of the Court of Common Pleas, since the evi-
dence before me concerned only that court.
46a
In support of their position, plaintiffs rely heavily on the
Supreme Court’s holding in Cleveland Board of Education
v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L.Ed.2d 52
(1974). There, the Court considered a constitutional chal-
lenge to school board rules requiring pregnant teachers to
take unpaid leaves of absence several months before they
were expected to give birth. The defendants offered two
justifications for such a rule. First, the maternity leave
requirement fostered “continuity of classroom instruction”
since it provided a firm date when the teacher would leave
her employment, thereby making it easier to hire a sub-
stitute. The Court summarily rejected this argument, since
any firm date chosen by the teacher herself would serve the
same purpose, provided that the school board was given
advance notice. 414 U.S. at 641-42, 94 S. Ct. at 797; see
Green v. Waterford Board of Education, 473 F.2d 629 (2d
Cir. 1973).
Secondly, the defendants contended that mandatory ma-
ternity leaves served “the necessity of keeping physically
unfit teachers out of the classroom,” thereby insuring the
safety of both the teacher and the students. The Supreme
Court acknowledged that the schoolroom safety was a per-
fectly legitimate state purpose, and there was no doubt that
the mandatory leave rules served that purpose. 414 U.S. at
643-44, 94 S. Ct. at 798. This, however, was no answer to
the due process challenge, since the rules in question
“amount to a conclusive presumption that every pregnant
teacher who reaches the fifth or sixth month of pregnancy
is physically incapable of continuing.” 414 U.S. at 644, 94
S. Ct. at 798. Notably lacking was any “individualized de-
termination” of a particular teacher's ability to continue in
her job. Rather, “the rules contain an irrebuttable pre-
sumption of physical incompetency,” and the presumption
applied even to persons who remained fully able to teach.
414 US. at 644, 94 S. Ct. at 798.
47a
The Court went on to observe that while the medical
evidence in the record conflicted on many points, it over-
whelmingly supported the conclusion that the time at
which any pregnant woman becomes unable to work “is
very much an individual matter.” 414 U.S. at 645, 94 S. Ct.
at 799 (footnote omitted). Indeed, while some pregnant
women would be unable to work beyond the arbitrary cut-
off date established by the defendants, there plainly were
many others who could continue for longer periods. Thus,
said the Court, the presumption contained in the rules “is
‘neither necessarily [nor] universally true, and is violative
of the Due Process Clause.” 414 U.S. at 646, 94 St. Ct. at
799."
In so holding, the Court recalled its earlier decisions in
Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L.Ed.2d
63 (1973), and Stanley v. Illinois, 405 U.S. 645, 92 S. Ct.
1208, 31 L.Ed.2d 55] (1972). The Vlandis decision held
unconstitutional as violative of due process a state law
which created an irrebuttable presumption of nonresidence
for the purpose of benefitting from reduced tuition rates at
a state university. The Court declared that such a pre-
sumption “is forbidden by the Due Process Clause” when
it is not necessarily true in every case, “and when the State
has reasonable alternative means of making the crucial de-
termination.” 412 U.S. at 452, 93 S. Ct. at 2236. In similar
fashion, the irrebuttable presumption that unwed fathers
are not competent parents fell under a due process chal-
lenge in Stanley. There, the Court conceded arguendo
3. It is interesting to note that Justice Rehnquist’s dissenting
opinion in LaFleur anticipated the very case that now stands be-
fore me. The dissent, joined in by Chief Justice Burger, speaks
of “the jeopardy in which the Court’s opinion places longstanding
statutes providing for mandatory retirement of government em-
ployees.” LaFleur, supra, 414 U.S. at 659, 94 S. Ct. at 805 (Rehn-
quist, J., dissenting ).
48a
that the presumption in question could be accurately ap-
plied to most unmarried fathers. 405 U.S. at 654, 92 S. Ct.
at 1214. Nevertheless, since it was not true that all the
persons affected were in fact incompetent, “the Due Process
Clause require a more individualized determination” La-
Fleur, supra, 414 U.S. at 645, 94 S. Ct. at 799.
The LaFleur—Vlandis—Stanley line of authority controls
the present case. Here the state has created a presumption
that all judges become incompetent to perform their judi-
cial duties when they reach 70 years of age, and it there-
fore requires them to retire from the bench at that point in
their lives. The rule applies regardless of the fact that the
particular judge involved may be fully capable of continu-
ing to carry out the duties of his or her judicial office.
[2] The principal justification advanced by the Com-
monwealth for this rule is “the removal of unfit judges from
the bench by means of mandatory retirement at age sev-
enty.” Brief for Defendants at 4. This is an undeniably
legitimate state purpose, and plaintiffs make no argument
to the contrary. It could even be conceded, for the mo-
ment, that the rule furthers this purpose if we assume ar-
guendo that at least some judges are no longer able to
perform their duties when they reach age 70. The ques-
tion before me now, however, “is whether the [rule sweeps]
too broadly” in serving its admittedly legitimate purpose.
LaFleur, supra, 414 U.S. at 644, 94 S. Ct. at 798. I hold
that it does.
It is clear that the presumption we are concerned with
is true in neither all nor even most cases. The evidence
showed, not surprisingly, that the age at which a person’s
intellectual abilities and physical stamina are lost or dim-
inished is a highly individual matter. Indeed, for the pur-
pose of determining a point of reduced mental capacity,
health is a far more critical factor than age. N.T. 44. This,
49a
of course, will vary dramatically from one person to the
next. It should be noted that the variable which the Su-
preme Court found fatal in LaFleur, supra, was only a
matter of weeks, or at most, months. Here, by contrast, the
variation could range over dozens or even scores of years.
Moreover, it is clear that the Commonwealth itself does
not believe in the validity of its own presumption. As in-
dicated in my findings of fact, while judges in Pennsylvania
are forced to retire at 70, they are not forced to stop being
judges. Rather, the state permits retired judges to serve
as “senior judges” if they so desire and if they are con-
sidered competent. Senior judges might have little sig-
nificance to this case if their services were merely inci-
dental to the operation of the state's judicial system. No-
thing, however, could be further from the truth. The fact
is that the Commonwealth relies on the work of senior
judges to such an extent that they have become vital to the
continued functioning of the Pennsylvania court system.
Presently, there are 54 former or retired judges render-
ing service as senior judges in Pennsylvania. Of these, 47
are over 70 years of age. At the same time, there are ap-
proximately 300 active judges serving in the Courts of
Common Pleas, Commonwealth Court, Superior Court, and
Supreme Court. Thus, senior judges constitute roughly 15
percent of the total judicial work force. It is clear from
the record that a shortage of judicial manpower has existed
in the Commonwealth for some time. N.T. 91. Although
it is still a problem, this shortage has been significantly al-
leviated by the work of senior judges.
The experience of Philadelphia County is illustrative.
At the present time, Philadelphia has 80 active judges and
eight senior judges in the Court of Common Pleas. N.T.
88. The senior judges maintain substantially the same level
of productivity as active judges. N.T. 97. One senior judge
50a
serves as supervising judge of the arbitration program in
addition to performing all his regular judicial duties on a
full-time basis. N.T. 93. Other senior judges work in each
of the court’s divisions and render services that would other-
wise have to be performed by active judges.
It is clear that the work of the senior judges has had a
visibly favorable impact on the efficient operation of the
Court of Common Pleas. The court has experienced a sig-
nificant reduction in backlog of cases which would not
have been possible without the senior judges. N.T. 94.
Moreover, because of the availability of senior judges, it
is no longer necessary for the court in Philadelphia to re-
quest assistance from active judges in other districts. This
had to be done regularly before the advent of the senior
judge system. N.T. 108.
It is fair to conclude, therefore, that senior judges make
an important contribution to the functioning of the Penn-
sylvania judicial system,* and it will be remembered that
the vast majority of these judges are over 70 years old. I
am also mindful of the telling fact that since the inception
of the senior judge system, the request of every former and
retired judge for assignment to senior judge duties has been
granted,
The above discussion reveals clearly that the Common-
wealth itself places little credence in the validity of the
presumption created by its mandatory retirement rule. The
4. The evidence in the record concerning the duties and per-
formance of senior judges dealt largely with Philadelphia County.
The defendants, however, offered no credible evidence to show
that the favorable effect of the senior judge system in Philadelphia
was significantly different from other counties. On the contrary,
from the evidence before me it is fair to conclude that senior judges
have come to play an important role in the efficient functioning
of the state court system as a whole.
5la
fact is that there are great numbers of judges who are per-
fectly capable of continuing in their judicial office well be-
yond the age of 70 years.
[3] It may be that some judges are incapable of ef-
fectively performing their duties when they reach 70, and
some may even lose their abilities substantially before that
time. Nevertheless, it is wholby unnecessary to trample on
the rights of all who reach a given age merely in order to
weed out the few who are no longer fit. Such an approach
violates due process, especially where, as here, “the State
has reasonable alternative means of making the crucial de-
termination.” Vlandis v. Kline, supra, 412 U.S. at 452, 93
S. Ct. at 2236.
Reasonable alternative means exist in this case. Find-
ing of Fact No. 26 refers to the creation of the Judicial In-
quiry and Review Board, pursuant to Article V, Section 18
of the Pennsylvania Constitution. This board is empow-
ered to conduct investigations concerning allegations that
a judge is guilty of misconduct or neglect of duty, or that
he suffers from a disability which impedes the performance
of his judicial functions. Such an investigation may be
initiated by the Board on its own, or it may be in response
to a complaint filed by any person. Exhibit P-8 sets forth
the rules which establish a detailed procedure for a formal
hearing where it is warranted. Following such a hearing,
the Board can make a recommendation that the judge in-
volved be suspended, removed, disciplined, or compelled
to retire. Final authority for taking such action rests with
the Supreme Court.
It is clear, that a procedure for monitoring the compe-
tence of judges already exists in Pennsylvania. Indeed, it
might fairly be argued that the Inquiry and Review Board,
without change, is adequate to serve the state interest of
keeping unfit judges off the bench. Certainly, modifica-
52a
tions are available which could fill any void left by the re-
moval of the mandatory retirement rule. For example, the
state could require that all judges’ work be reviewed at a
certain age, or a review could take place periodically, with-
out regard to age. It is not within my province to delineate
the mechanics of such a system. The important point is
that reasonable alternative means exist for controlling the
quality of the state’s judiciary without imposing an arbi-
trarily chosen age at which all must retire. At the very
least, it is no more difficult to measure the competence of
a judge than it is to determine whether a pregnant woman
can control a classroom, or whether an unmarried man can
raise a child. See LaFleur; Stanley, supra.
[4] In addition to the need for maintaining judicial com-
petence, the state offers several lesser justifications for the
mandatory retirement rule. First, the Commonwealth sub-
mits that the present system serves the purpose of “updat-
ing the judiciary by infusion of ‘new blood’ knowledgeable
in modern trends in the law.” The defendants have offered
no evidence, however, to show that elderly judges are any
less cognizant of modern legal trends than their younger
counterparts. In fact, quite the opposite may be true. The
record contains numerous references to the benefits which
the judicial system derives from the wisdom and experience
of former and retired judges who serve as senior judges.
See, e.g., Statement of Chief Justice Eagen Relative to
Amendment of Pa.R.J.A. 701(a), October 5, 1977; see also
Exhibit P-6. Absent persuasive supporting evidence, an
intrusion on constitutional rights cannot be justified by the
proposition that new blood is better than old blood.
[5] The state further submits that the present system of
mandatory retirement provides opportunities for elevation
to the bench; avoids the difficulty of determining an in-
dividual judge’s competence; and provides certain notice
*%
53a
of upcoming judicial vacancies. While each of these pur-
poses may be arguably legitimate, they are all matters of
mere administrative convenience. Each can be amply
served by other measures which do not infringe on con-
stitutionally protected rights. “[A]dministrative con-
venience alone is insufficient to make valid what otherwise
is a violation of due process of law.” LaFleur, supra, 414
U.S. at 647, 94 S. Ct. at 799.
I am persuaded, therefore, that the irrebuttable pre-
sumption created by Pennsylvania's mandatory retirement
rule violates the due process clause because it is untrue in
most, if not all, cases, and because reasonable alternative
means exist by which the state can accomplish the rule's
intended purposes.
In addition to LaFleur, Vlandis, and Stanley, supra,
there are other cases which support this conclusion. Most
significant among these is Gurmankin v. Costanzo, 556 F.2d
184 (3d Cir. 1977). The Gurmankin plaintiff was a blind
woman who was denied the right to take a teacher's ex-
amination. Following LaFleur, the Third Circuit found
that due process had been violated by the irrebuttable pre-
sumption that blind persons are incompetent to teach
sighted students. Here also, the constitutional challenge
was not to the requirement that teachers be competent to
teach, but only to the denial of an opportunity for plaintiff
to demonstrate her competence. 556 F.2d at 187, and n.5.
Also persuasive is the recent decision of my learned col-
league, Judge Cahn, in Davis v. Bucher, 451 F. Supp. 791
(E.D. Pa. 1978). There, the irrebuttable presumption that
persons with a history of narcotics abuse were incompetent
to engage in public employment was held violative of the
due process clause. Once again, the Constitution was in-
terpreted to require individual determinations of compe-
tence. In so holding, Judge Cahn noted that the plaintiffs
ry
54a
before him were only applying for work, thereby placing
them in a somewhat less tenable position than the LaFleur
plaintiffs, who sought to protect their rights to present em-
ployment. Mindful of this distinction, the court refrained
from holding that the plaintiffs were entitled to a full hear-
ing on all job qualifications. Nevertheless, “if the City
establishes a policy which is as facially arbitrary as the one
in the case at bar and seeks to apply it in a conclusive man-
ner, then plaintiffs should, at a minimum, be given an op-
portunity to demonstrate that the policy is inappropriate in
their case.” 451 F. Supp. at 800.
Despite the clear teachings of these cases, however, the
defendants contend that the analysis expressed at length
above is not a proper ground for decision. They argue that
however compelling the irrebuttable presumption doctrine
may once have been, it is no longer applicable in this, or
any other case.
To follow the course of defendants’ reasoning, we must
begin with the decision of the Court of Appeals for the
Seventh Circuit in Trafelet v. Thompson, 594 F.2d 623 (7th
Cir. 1979), cert. denied, — U.S. —, 100 S. Ct. 219, 62 L.Ed.
2d 142 (1979). There, a due process challenge was raised
to an Illinois statute requiring retirement of state court
judges at age 70, thus presenting a controversy which is
materially indistinguishable from the present case. Find-
ing no constitutional violation, the Seventh Circuit rejected
a due process argument which was grounded firmly on the
irrebuttable presumption doctrine. Clearly, if I chose to
follow it, the Trafelet opinion would be fatal to the cause
of action in the present case. Nevertheless, for several rea-
sons, I find the Seventh Circuit's decision to be unper-
suasive.
In rejecting the irrebuttable presumption approach, the
Trafelet court relied heavily on an earlier decision of the
55a
Seventh Circuit, Miller v. Carter, 547 F.2d 1314 (7th Cir.
1977), aff'd by an equally divided court, 434 U.S. 356, 98
S. Ct. 786, 54 L.Ed.2d 603 (1978), where “we expressed
our uncertainty concerning the scope and continuing force
of the doctrine of irrebuttable presumptions.” Trafelet, 594
F.2d at 629. Evidently, this “uncertainty” is based on the
failure of the Supreme Court to rely upon or even mention
the irrebuttable presumption doctrine in the recent deci-
sions of Massachusetts Board of Retirement v. Murgia, 427
U.S. 307, 96 S. Ct. 2562, 49 L.Ed.2d 520 (1976), and Vance
v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L.Ed.2d 171
(1979). These decisions held, respectively, that the equal
protection clause was not violated by mandatory retire-
ment rules affecting state police officers and foreign ser-
vice officials.
[6, 7] For reasons explained later in this opinion, I find
that Murgia and Vance are wholly distinguishable from
the equal protection claim now before me. As far as due
process is concerned, the fact is that these cases simply do
not address the issue.’ The irrebuttable presumption
analysis is a doctrine of constitutional law developed in a
due process context. It has been endorsed and relied upon
by the Supreme Court in at least three major decisions
within the past seven years. See LaFleur, Vlandis, Stanley,
supra. It is inconceivable to me that such a doctrine could
be somehow negated or overruled by default simply be-
5. Plaintiffs have argued that the Supreme Court could not con-
sider the irrebuttable presumption doctrine in Murgia, supra, be-
cause the issue was not raised. The question presented on appeal,
however, simply asked the Court to decide: “Is Massachusetts
statute mandating retirement of state police officer upon reachin
age of 50 constitutional?” 43 U.S.L.W. 3504 (March 18, 1975). It
appears therefore that the Court could have inquired into the due
process aspects of the case if it so desired. Nevertheless, it is clear
that the Court's opinion dealt only with equal protection principles,
and I will not read it as extending beyond that realm.
56a
cause the Supreme Court has not availed itself of several
alleged opportunities to discuss it. From the language and
analysis used in the majority opinions, it is clear to me that
Murgia and Vance were decided strictly in an equal pro-
tection context. They should not, therefore, be read as
impliedly overruling a doctrine developed within the scope
of due process.
Apparently, the Trafelet court was not concerned with
the fact that the constitutional analysis in Murgia and
Vance was limited to equal protection. The court relied
here on the Second Circuit’s opinion in Palmer v. Ticcione,
576 F.2d 459 (2d Cir. 1978), cert. denied, 440 U.S. 945,
99 St. Ct. 1421, 59 L.Ed.2d 633 (1979), which suggests
the theory that the irrebuttable presumption doctrine,
though born in the realm of due process, was later absorbed
into equal protection law, where it died a silent death.
Thus, it is said that “where ‘the statute’ classification is sus-
tainable as rationally based, then it should not fall because
it might also be labelled a presumption. Trafelet, supra,
594 F.2d at 630, quoting Palmer, supre. 976 F.2d 463. In
my view, this approach ignores the wlear command of
LaFleur, Vlandis, and Stanley. In each of those cases, the
6. “This case presents the question whether the provisions . . .
that a uniformed state police officer ‘shall be retired . . . upon his
attaining age fifty,’ denies appellee police officer equal protection
of the laws in violation of the Fourteenth Amendment.” Murgia,
supra, 427 U.S. at 308, 96 S. Ct. at 2564. “We decide only that
the system enacted by the Massachusetts Legislature does not
pone stg equal protection of the laws.” Id., at 317, 96 S. Ct.
at . “The issue presented is whether Congress violates the
ual protection component of the Fifth Amendment’s Due Process
use....” Vance, supra, 440 U.S. at 94, 99 S. Ct. at 942; “In an
equal protection case of this type....” Id., at 111, 99 S. Ct. at 950.
The determinative consideration in both Murgia and Vance was
the presence of a rational basis for the challenged rules. This
factor, of course, is traditionally associated with equal protection
analysis, rather than due process.
57a
statutory classification involved might well have been “at-
tainable as rationally based.” In LaFleur, the Supreme
Court stated plainly that the “mandatory termination ...
rule surely operate to insulate the classroom from the pre-
sence of potentially incapacitated pregnant teachers.” 414
U.S. at 644, 94S. Ct. at 798. Similarly in Stanley, the Court
was willing to concede arguendo that “most unmarried
fathers are unsuitable and neglectful parents,” thereby
providing a clearly rational basis for the rule in question.
Nevertheless, where the rules were not universally ap-
plicable, and where a reasonable alternative means existed
for making the necessary determination, the statutory clas-
sification in each of those cases fell, precisely because it
could be “labelled a presumption.” *
[8] For these reasons, I reject the defendants’ argument
that the irrebuttable presumption doctrine is no longer
viable. I think it highly improper to hold that a well-
established doctrine of due process law has been overruled
7. My conclusion that the presumption doctrine stands separate
and apart from equal protection law is supported by Gurmankin v.
Costanzo, 556 F.2d 184 (3d Cir. 1977). There, the Court of Ap-
peals affirmed the decision of a district court that the refusal to
— a blind person to sit for a teacher's examination violated
ue process because it impermissibly created an irrebuttable pre-
sumption. In so holding the court stated that because the due
process analysis provided an tr ground for deciding the case,
there is no reason for us to address Ms. Gurmankin’s equal pro-
tection contentions. For the same reason we need not consider
whether these contentions should . . . be rejected on the authority
of Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562,
49 L.Ed.2d 520 (1976) (per curiam).” 556 F.2d at 188. Thus, de-
spite the views of the Second and Seventh Circuits, it is obvious
t the Third Circuit recognizes a distinction between irrebuttable
“Skye ete analysis and equal protection law. Moreover, it may
inferred from Gurmankin that the Third Circuit does not read
Murgia, supra, as weakening the validity of the irrebuttable pre-
sumption doctrine.
58a
simply because the Supreme Court failed to mention it in
opinions which speak only to the principles of equal pro-
tection.’ Rather, I conclude that absent a clear expression
to the contrary, the LaFleur, Vlandis, and Stanley opinions
are still controlling. Therefore, I must apply the irrebut-
table presumption doctrine when it is urged upon me in
an appropriate case. The doctrine’s appropriateness in this
case is abundantly clear.
II. EQUAL PROTECTION
In Part I of this opinion, I have held that the Pennsyl-
vania rule mandating the retirement of judges at 70 is un-
constitutional because it violates the plaintiffs’ right to due
process of law. This holding is sufficient ground, by itself,
upon which to decide this case and enjoin the enforcement
8. Plainly, there is great danger in attaching undue significance to
the Supreme Court's silence. In Bellotti v. Baird, — U.S. —, 99 S.
Ct. 3035, 61 L.Ed.2d 797 (1979), decided only two months ago, the
Court held that a state may not require a minor to obtain parental
consent before getting an abortion, unless it also provides her with
an alternative p ure whereby she may demonstrate her com-
petence to make the necessary decision on her own, or that in any
event the abortion is in her best interests. Id. at —, 99 S. Ct. at 3048.
In so holding, the court does not cite or rely upon the irrebuttable
presumption doctrine. Nevertheless, the Bellotti analysis is fully
consistent with the doctrine’s principles. Essentially, the statute
conclusively presumed that minors are incapable of giving informed
consent to an abortion. Noting that this is not always true, the
Court required an alternative means whereby an individual minor
could demonstrate her competence.
Would it be fair to assume that the Supreme Court has now over-
ruled the irrebuttable presumption doctrine because, in effect, it has
applied the doctrine’s principles without actually citing the doctrine
itself? Such a conclusion would be an absurd elevation of form
over substance. Nevertheless, it is no more illogical than the argu-
ment, advanced by defendants, that the Supreme Court has over-
ruled an aspect of due process law by confining itself to equal pro-
tection principles in a case that might also have been amenable to
a due process analysis.
59a
of Article V, Section 16(b). See Gurmankin v. Costanzo,
supra, 556 F.2d at 188. Nevertheless, the parties have
vigorously contested the equal protection aspects of the
case, and it is appropriate to discuss these issues as well.
[9-11] At the outset, it is clear that the right allegedly
infringed in this case, i.e., the right to public employment,
is not a fundamental right. Dandridge v. Williams, 397
U.S. 471, 90 S. Ct. 1153, 25 L.Ed.2d 491 (1970). Similarly,
the plaintiffs do not qualify as a suspect class. See San
Antonio School District v. Rodriguez, 411 U.S. 1, 93 S. Ct.
1278, 36 L.Ed.2d 16 (1973). “Strict judicial scrutiny” is
therefore inappropriate in this case, and the correct test for
deciding the equal protection questions before me is the
rational basis standard. Masachusetts Board of Retire-
ment v. Murgia, supra, 427 U.S. at 312-14, 96 S. Ct. at
2566-67. In applying this test, I am mindful that “[t]his
inquiry employs a relatively relaxed standard” and that
“[plerfection in making the necessary classification is
neither possible nor necessary.” Id. at 314, 96 S. Ct. at
2567. On the contrary, to survive the rational basis chal-
lenge, the rule need only be “rationally related to further-
ing a legitimate state interest.” Id., at 312, 96 S. Ct. at 2566.
Defendants argue that the mandatory retirement of
judges rule satisfies the above mentioned standard because
it is rationally related to the purpose of keeping unfit judges
off the bench. This is, of course, a perfectly legitimate
state purpose. The question is whether the challenged rule
bears a rational relationship to that purpose.
[12] It is clear that the concept of mandatory retirement
at a specified age does not, by itself, violate equal protec-
tion. There are many decisions upholding mandatory re-
tirement systems, and defendants rely on these to support
their argument. This line of decisions is led by Massachu-
60a
setts Board of Retirement v. Murgia, supra, and Vance v.
Bradley, supra. In both cases, the Supreme Court upheld
the mandatory retirement of certain public employees.
Despite defendants’ urgings, however, I find that these
cases do not control the present controversy.
In Murgia, the Court considered an equal protection
challenge to a Massachusetts law requiring uniformed state
police officers to retire at age 50. The evidence showed
that the physical demands of the job were considerable and
that the risk of physical failure clearly increased with age.
The district court in Murgia found that the rule violated
equal protection because no basis had been shown for set-
ting the cutoff at age 50. The Supreme Court reversed,
since, however arbitrary a particular age might be, it was
clear that a relationship had been shown between advanc-
ing age and a diminution of the physical abilities required
to perform the officer's job. A rule that removed all at a
fixed age, therefore, at the very least, had a rational basis.
427 U.S. at 315, 96 S. Ct. at 2568.
A very different set of facts emerges from the evidence
in this case. Here, the record contains no proof of a rela-
tionship between advancing age and ability to perform the
duties of a judge. On the contrary, the evidence before
me belies the existence of any such relationship.
We are not concerned in this case with an occupation
that requires sustained physical ability or stamina, such as
that of a uniformed police officer. Rather, we are dealing
with judges, a most unique and select class of individuals.
The evidence before me showed that it is a serious mistake
to consider the population as a whole when determining
an age at which physical and mental abilities begin to de-
teriorate. On the contrary, the plaintiffs’ expert testified,
without contradiction, that persons, such as judges, who
have advanced education and who have succeeded in
6la
reaching the upper levels of their profession are likely to
survive and retain their abilities for a substantially longer
period of time than the population at large. N.T. 45-46.
This, of course, is fully consistent with the fact that persons
over age 70 are presently serving as senior judges in Penn-
sylvania, rendering significant service to the Common-
wealth. It will be remembered, too, that, without excep-
tion, every judge over 70 who requested assignment was
readily accepted by the state.
The point is that this record provides no support at all
for a connection between advanced age and inability to |
perform the duties of a judge, thereby rendering this case
wholly distinguishable from Murgia.
[13] I am aware that it would be erroneous to place an
affirmative burden on the defendants to come forward with
“empirical proof” of a decline in ability to perform judicial
duties with advancing age. Vance v. Bradley, supra, 440
U.S. 110, 99 S. Ct. 950. Rather, it is plaintiffs’ duty to “con-
vince the court that the legislative facts on which the clas-
sification is apparently based could not reasonably be con-
ceived to be true by the governmental decisionmaker.” Id.
at 111, 99S. Ct. at 950. In my view, plaintiffs have met this
heavy burden.
My conclusion here is based on more than the evidence
that those at the top of their professions do not of necessity
lose their abilities as the years pass. More compelling is
the state's own conduct, which indicates clearly that the
“governmental decisionmaker” did not and does not be-
lieve in the existence of any relationship between advanced
age and judicial incompetence.
We have already seen that the state has assigned senior
judge duties to every judge who has asked for them. More-
over, we have seen that the senior judges carry heavy
62a
workloads, and have become esesntial to the continued
health of the Pennsylvania judicial system. What we have
not examined until now is the method by which the senior
judges are compensated. Findings of Fact 74 to 77 set
forth the striking differences between the compensation of
senior judges and that of their “active” colleagues.
Active judges receive an annual salary of $48,000. Sen-
ior judges are paid on a per diem basis. They receive $125
per day, which would amount at most to $32,500 per year.
Active judges are paid regardless of whether they are on
the bench, in their chambers, sick at home, or away on
vacation. Senior judges, by contrast, are paid only for
days worked, which is strictly limited to time spent on the
bench. It does not include sick days or vacation periods
of any kind. More surprisingly, it also does not include
time spent in chambers writing opinions, conducting con-
ferences, or tending to correspondence. While any trial
judge knows that these are all necessary adjuncts of con-
ducting trials, they are, nevertheless, not compensable
labor for senior judges. Perhaps most remarkable of all
is the fact that some senior judges actually render service
without any compensation because the le
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