Reply Brief — Malmed v. Thornburgh

supreme Court, U.S.

FILED

: ICT 16 1060

7 JR., CLERK

IN THE

Supreme Court of the United States

Ocroser TERM, 1980

No. 80-361

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.

s PETITIONERS’ REPLY MEMORANDUM

STEPHEN M. FELDMAN,

JEFFREY S. ROSENBLUM,

Counsel for Petitioners,

FELDMAN & FELDMAN, P.A.,

1715 Rittenhouse Square,

Philadelphia, Pennsylvania 19103

(215) 546-2604

Pennsylvania Appellate Printing Co.—Call Toll Free—1(800) 526-7560

TABLE OF CONTENTS

Restatement of the Case ..............ccccecccees

Reply to Opposing Arguments ....................

A.

There exists no agreement between circuits re-

garding the questions here presented which ques-

tions have never been considered or decided by

any otner Court ... 6.5 2s cennene bee eee

Petitioners have properly challenged not only Ar-

ticle V, §16(b), but all related constitutional pro-

visions, legislation and regulations establishing and

implementing the system of service by “Senior

Judges” in Pennsylvania and have properly raised

the unequal pay issue before the trial court .....

Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457,

45 L.Ed.2d 522 (1975) is not applicable to the

fags of this case .....<..cscuusauee eae

The District Court did properly analyze the legis-

lative history of Article V, Section 16(b) and did

render a proper decision accordingly ...........

Cometetions .. ..o.c ic vcackisouki ieee

Cases CITED:

Cleveland Board of Education v. LaFleur,

414 U.S. 632, 94 S. Ct. 791, 31 L.Ed.2d 52 (1974)

Monell v. Department of Social Service of City of

New York,

436 U.S. 658, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978)

Trafelet v. Thompson,

594 F.2d 623 (7th Cir. 1979), cert. denied, —

U.S. —, 100 S. Ct. 219, 62 L.Ed.2d 142 (1979) ..

2

9

oe

TABLE OF CONTENTS

Cases CITED:

Turner v. Department of Employment Security,

423 U.S. 44, 96 S. Ct. 249, 44 L.Ed.2d 181 (1975) .. 5:

Weinberger v. Salfi,

422 U.S. 749, 95 S. Ct. 2457, 45 L.Ed.2d 522

FIED oeccccsccevesesaveseecsinee ae 4

CONSTITUTIONAL PROVISION CITED:

Pa. Const. Art. V, Section 16(b) ............ 3, 4, 5, 6

IN THE

SUPREME COURT OF THE UNITED STATES

OcToBER TERM, 1980

No. 80-361

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.

PETITIONERS’ REPLY MEMORANDUM

Pursuant to Rule 22.4 of the Rules of the Supreme

Court of the United States, Petitioners respectfully submit

this memorandum in reply to Respondents’ Brief in Op-

position to Petition for a Writ of Certiorari.

RESTATEMENT OF THE CASE

Petitioners herein adopt the Statement of the Case

set forth at pages 4 through 8 of their Petition for Writ of

Certiorari filed on September 5, 1980, the pertinent facts

of which Respondents have not disputed in their Brief in

Opposition.

REPLY TO OPPOSING ARGUMENTS

A. There exists no agreement between circuits re-

garding the questions here presented which ques-

tions have never been considered or decided by

any other court

Petitioners in this case do not attack mandatory re-

tirement per se since no system of mandatory retirement

of Pennsylvania judges, in effect, exists. Petitioners attack

the system in Pennsylvania which, as evidenced by the stip-

ulated and uncontradicted facts in the record, has since its

implementation eliminated no judges but on the contrary

has utilized the vast experience of judges reaching 70, while

paying those judges substantially less than is paid to judges

under 70 for the same work. See Petition, pages 12-14.

This was made exceedingly clear to both the Court of Ap-

peals and the trial court.

Because Respondents find it difficult to justify the sys-

tem of “mandatory retirement” coupled with post retire-

ment service as it exists in Pennsylvania, they create a

“strawman’ by suggesting that Petitioners’ challenge, and

the District Court’s holding, are limited to the concept of

mandatory retirement per se. Respondents then cite Tra-

falet v. Thompson, 594 F.2d 623 (7th Cir. 1979), cert. de-

nied, — U.S. —, 100 S. Ct. 219, 62 L.Ed.2d 142 (1979) for

the proposition that the only other Court of Appeals to have

faced the issue, did, consistent with the Third Circuit de-

cision in this case, rule that mandatory retirement per se

_ does not violate the Fourteenth Amendment. Respondents

conclude that such an agreement between the Circuits pre-

cludes any need for review by this Court.

Respondents have obviously missed the point. Neither

Trafalet, distinguishable in that the state statute there

3

involved made specific provision for any judge perform-

ing post retirement service to receive the same compensa-

tion applicable to “non-retired” judges,’ nor any other case

has addressed or decided the actual issue here presented

to this Court. Nor, for that matter, did the Court of Ap-

peals below squarely confront the issue raised by Peti-

tioners, which is, in itself, an appropriate reason to invoke

this court's review. See Petition, pp. 12-14. Moreover,

even if the issue presented in this case were to be limited

to that decided in Trafalet, the mere fact of consistent

decisions by two circuits would not alone obviate the

need for review by this Court.

\

B. Petitioners have properly challenged not only Ar-

ticle V, Section 16(b), but al! related constitutional

provisions, legislation and regulations establishing

and implementing the system of service by “Senior

Judges” in Pennsylvania and have properly raised

the unequal pay issue before the trial court

Respondents argument, largely technical, that Peti-

tioners did not challenge the constitutionality of the “un-

equal pay” and other relevant provisions is nevertheless

inaccurate and incorrect.

Petitioners instituted this action by the filing of a

Complaint for Declaratory Judgment, Injunctive and Other

Equitable Relief citing inter alia, certain provisions con-

cerning mandatory retirement, as well as the assignment

and compensation of former judges, and requesting, inter

alia, a declaration of the invalidity of mandatory retire-

ment, and “such other relief as may be just and equitable.”

At trial, through their counsel's opening statement, and

1. See Petition for Writ of Certiorari, footnotes 6 at pages

14-15.

4

through the presentation of both live testimony and stip-

ulated uncontradicted facts, Petitioners pursued a clear

challenge to the Pennsylvania system of mandatory retire-

ment, within the context of the present facts (See A,

supra), taking issue with not only Article V, Section 16(b),

but additionally, and in conjunction therewith, with any

and all constitutional, statutory and regulatory provisions

establishing and implementing the discriminatory system

(37a-45a, 49a-50a; See A, supra). It is clear that the

District Court, cognizant of the scope of Petitioners’ chal-

lenge, and privy to the evidence presented in support

thereof, premised its decision upon the unconstitutionality

of not Article V, Section 16(b) alone, but upon the com-

bined effect of what it perceived as a unified scheme 49a-

50a; 62a-64a). The Court of Appeals then committed a

basic error in its disregard of the record relating to the

scheme. See Petition, pp. 12-14. Moreover, Respondents

who have not questioned the scope of Petitioners’ challenge

all along should not be permitted to do so now.

C. Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457,

45 L.Ed.2d 522 (1975 ) is not applicable to the facts

of this case

Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 95

L.Ed.2d 522 (1974) does not, as Respondents contend,

signal the demise of the irrebuttable presumption doctrine

adopted by this court in Cleveland Board of Education v.

LaFleur, 414 U.S. 632, 94 S. Ct. 791, 31 L.Ed.2d 52 (1974),

nor does it, as the Court of Appeals seems to have held,

effectively reduce the doctrine to an equal protection ra-

tional relationship type of analysis. As noted in the Peti-

tion for Writ of Certiorari, at footnote 8, p. 18, Salfi

merely deemed the LaFleur holding inapplicable to a

narrow category of government benefits cases where the

plaintiffs enjoyed neither contractual nor constitutionally

protected status (422 U.S. at 721-22, 95 S. Ct. at 2470)

and where there was insufficient evidence that alternative

means existed which could just as effectively satisfy the

legislative purpose (422 U.S. at 782-83, 95 S. Ct. at

2475).

Following LaFleur in post-Salfi decisions such as

Turner v. Department of Employment Security, 423 U.S.

44, 96 S. Ct. 249, 44 L.Ed.2d 181 (1975), and citing it

with approval in others, e.g., Monell v. Department of

Social Service of City of New York, 436 U.S. 658, 98 S.

Ct. 2018, 56 L.Ed.2d 611 (1978), this Court has made it

clear that lower courts should continue to apply the irre-

buttable presumption doctrine to cases, like here, where

the factual circumstances presented are virtually identical

to those in LaFleur. Petitioners thus reiterate their argu-

ment, set forth at pages 15-20 of the Petition, that the

Court of Appeals has, with respect to their Due Process

challenge, erred.

D. The District Court did properly analyze the legis-

lative history of Article V, Section 16(b) and did

render a proper decision accordingly

Contrary to Respondent's assertion in this regard, the

District Court did not ignore the legislative history of the

constitutional provision in determining the Pennsylvania

system of mandatory retirement to be “a thinly veiled sys-

tem for acquiring cheap judicial labor” (63a). To the

extent that any of those “state purposes” gleaned by the

Court of Appeals from the Reference Manual were ar-

guably relevant, the District Court did properly confront

and adequately dispose of such purposes (52a-53a; Peti-

tion, pages 20-22). The Court of Appeals then erred in

sidestepping the record to substitute its own analysis as to

the purpose of Article V, Section 16(b) even though the

District Court’s correct determination in that respect was

amply supported by the records of the constitutional con-

vention, and was based in part upon that position which

Respondents themselves presented and then continuously

adhered to throughout this litigation, that the primary

se of mandatory retirement was to remove unfit

judges. See Petition, pages 20-22.

CONCLUSION

For the reasons set forth in the Petition for Writ of

Certiorari, and for the reasons set forth herein, it is re-

spectfully submitted that 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,

/s/ Stephen M. Feldman

STEPHEN M. FELDMAN

/s/ Jeffrey S. Rosenblum

JEFFREY S. ROSENBLUM

Counsel for Petitioners

1715 Rittenhouse Square,

Philadelphia, Pennsylvania 19103

(215) 546-2604