489 N.E.2d 259 (Ohio 1986), 85-1680, State ex rel. Keefe v. Eyrich

Docket Nº:85-1680.
Citation:489 N.E.2d 259, 22 Ohio St.3d 164
Opinion Judge:Per Curiam.
Party Name:The STATE, ex rel. KEEFE, v. EYRICH et al.
Attorney:Respondents filed two motions to dismiss. We overruled both motions on December 18, 1985, and we now consider this dispute on its merits. Spraul, Reyering & Cronin, Daniel G. Spraul, Thomas C. Spraul, Patrick J. Cronin, William H. Reyering, Stephen G. Spraul, Waite, Schneider, Bayless & Chesley, ...
Judge Panel:LOCHER, HOLMES, CLIFFORD F. BROWN, DOUGLAS and WRIGHT, JJ., concur. CELEBREZZE, C.J., and SWEENEY, J., dissent. LOCHER, Justice, concurring. HOLMES, Justice, concurring. CELEBREZZE, Chief Justice, dissenting. SWEENEY, Justice, dissenting.
Case Date:January 31, 1986
Court:Supreme Court of Ohio
 
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489 N.E.2d 259 (Ohio 1986)

22 Ohio St.3d 164

The STATE, ex rel. KEEFE,

v.

EYRICH et al.

No. 85-1680.

Supreme Court of Ohio.

January 31, 1986

John W. Keefe, the relator, is a judge presently serving in the First District Court of Appeals. Because of the impending expiration of his term, Judge Keefe, on October 2, 1985, filed a declaration of candidacy and a petition to have his name placed on the Democratic primary election ballot for May 6. The Hamilton County Board of Elections, a respondent herein, refused to certify Judge Keefe's name for the reelection. Respondents admit that Judge Keefe's petition was proper as to form and bore the requisite number of signatures. Their refusal to submit Judge Keefe's name to the voters is based solely on the fact that Judge Keefe was born on April 24, 1915, making him seventy years old, and that he therefore will be unable to qualify for office under Section 6(C), Article IV of the Ohio Constitution. That provision states in part: "No person shall be elected or appointed to any judicial office if on or before the day when he shall assume the office and enter upon the discharge of its duties he shall have attained the age of seventy years. * * * "

Judge Keefe instituted the present action in mandamus, naming the Hamilton County Board of Elections, its members, and Sherrod Brown, Secretary of State, as respondents. In his complaint he alleges, inter alia, that Section 6(C), Article IV of the Ohio Constitution, on its face and as applied to him, contravenes the Constitution of the United States and also is in conflict with other provisions of the Constitution of Ohio.

Respondents filed two motions to dismiss. We overruled both motions on December 18, 1985, and we now consider this dispute on its merits.

Spraul, Reyering & Cronin, Daniel G. Spraul, Thomas C. Spraul, Patrick J. Cronin, William H. Reyering, Stephen G. Spraul, Waite, Schneider, Bayless & Chesley,

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Stanley M. Chesley and Thomas W. Keefe, Cincinnati, for relator.

Arthur M. Ney, Jr., Pros. Atty., and James W. Harper, Cincinnati, for respondent Hamilton County Bd. of Elections.

Anthony J. Celebrezze, Jr., Atty. Gen., Andrew I. Sutter and Cherry Lynne Poteet, Columbus, for respondent Secretary of State.

Albert L. Bell, Columbus, urging denial of the writ for amicus curiae, Ohio State Bar Ass'n.

PER CURIAM

This case presents a question of great significance to constitutional government in Ohio. We are called upon to decide whether a section of Ohio's Modern Courts Amendment, passed by the voters in [22 Ohio St.3d 165] 1968, can stand under a federal constitutional challenge. For reasons to follow, we conclude that it can.

At the outset, we must decide what standard is appropriate for our review of the constitutional issue now before us. We begin by noting that there is no fundamental right to run for public office. This concept was explained by the United States Supreme Court in Snowden v. Hughes (1944), 321 U.S. 1, at 6-7, 64 S.Ct. 397, at 400, 88 L.Ed. 497:

"The protection extended to citizens of the United States by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by state law. * * * [Citations omitted.] The right to become a candidate for state office, like the right to vote for the election of state officers * * * [citations omitted], is a right or privilege of state citizenship, not of national citizenship which alone is protected by the privileges and immunities clause."

Because Section 6(C), Article IV of the Ohio Constitution does make a distinction between those under age seventy and those over age seventy concerning their eligibility to run for judicial office, an issue is apparent involving the Equal Protection Clause of the Fourteenth Amendment.

In two cases, the United States Supreme Court has addressed equal protection challenges to mandatory retirement statutes. In the first, Massachusetts Bd. of Retirement v. Murgia (1976), 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520, the court upheld a state law requiring uniformed state police officers to retire at age fifty. The court observed at 313, 96 S.Ct. at 2566 that the right to government employment is not per se fundamental, and that those persons past the mandatory retirement age do not "constitute a suspect class for purposes of equal protection analysis." Consequently, the court refused to employ a strict scrutiny standard of analysis. Id. at 314, 96 S.Ct. at 2567. Instead, the state's mandatory retirement statute was subjected to a rational basis gauge of inquiry, beginning with the proposition that acts of a state legislature are presumed valid, id., and concluding with the principle that the legislation will be upheld if its purposes serve some legitimate state interest.

The second mandatory retirement decision is Vance v. Bradley (1979), 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171. Under attack was a federal law requiring foreign service officers to retire at sixty years of age. In sustaining the statute, the court again refused the invitation to classify mandatory retirees as a suspect class, and declined to apply a compelling governmental interest standard of review. The court said at 97, 99 S.Ct. at 942: "[W]e will not overturn such a [mandatory retirement] statute unless the varying treatment of different groups is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational."

We believe the standards set forth in Murgia and Vance are applicable to the

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mandatory retirement requirement of Section 6(C), Article IV of [22 Ohio St.3d 166] the Ohio Constitution. Further, because the Modern Courts Amendment, of which the disputed provision is a part, was passed by the vote of the people of Ohio, we are constrained to give it the greatest possible deference. We therefore will sustain it, in the face of this challenge, if it bears any relationship to a legitimate state interest.

The respondents, in defining the state's concerns in maintaining the judicial age proscription, rely on Malmed v. Thornburgh (C.A.3, 1980), 621 F.2d 565. That case sets forth four reasons in support of the ban: (1) that retired judges furnish a pool of judicial manpower to help ease court congestion, while younger judges are provided a means to move into the system, (2) that mandatory retirement eliminates the unpleasantness of selectively removing senile judges, (3) that mandatory retirement prevents harm to the justice system by senile judges who can " 'undo the efforts of a hundred excellent Judges' " (id. at 572), and (4) that mandatory retirement conforms to the recommendations of bar associations and other groups, and corresponds with the trend in other public and private employment.

First, we agree that a substantial public interest exists in reducing the delays to the administration of justice caused by overcrowded dockets. Retired judges provide a resource of experienced jurists to help manage the staggering workload that looms in some parts of Ohio. Additionally, mandatory retirement allows younger judges to move into the system, promoting new life and vigor to the judiciary, while at the same time giving these new members essential experience in their work.

Second, the citizens of the state have a right to expect that the process of removing intellectually deficient jurists will not evolve into the embarrassing spectacle of having the aged, infirm, or senile judge forcibly removed from the bench. This, to us, seems to be an obvious concern.

Third, it warrants no lengthy discussion to realize the self-evident consideration that unfit judges do harm to the judicial system. A mentally incompetent jurist costs litigants both time and money. They are forced to work under conditions which hinder the fair and prompt resolutions of their disputes, and are further inconvenienced by having to resort to removal proceedings or the appellate process to remedy any resulting wrongs done them.

Fourth, we take notice that mandatory retirement is becoming more popular with both the public and private sectors. It is becoming increasingly recognized that efficiency and fitness are important considerations in any field of endeavor. We do not feel that the citizens of Ohio should be expected to settle for any less, particularly since it is they who bear the expenses of maintaining our court system.

In view of the fact that there exists no fundamental right to be a candidate for public office, we simply cannot say that the reasons given by respondents for mandatory retirement of judges are so irrational that they do not correspond with legitimate interests of the people of Ohio. Consequently, [22 Ohio St.3d 167] we do not find, under this rational basis standard, that Section 6(C), Article IV of the Ohio Constitution is invalid. 1 We believe that it passes muster when measured against the United States Constitution.

We now consider whether a writ of mandamus should issue to compel the respondents to place relator's name on the primary election ballot for this year.

The familiar criteria for mandamus are (1) that the relator has a clear legal right to

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the relief prayed for, (2) that the respondents have a clear legal duty to perform the requested acts, and (3) that the relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42, 399 N.E.2d 81 [15 O.O.3d 53], paragraph one of the syllabus.

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