Malmed v. Thornburgh, 79-2467

• Citation: 621 F.2d 565
• Decision Date: 13 May 1980
• Docket Number: No. 79-2467,79-2467
• Parties: 22 Fair Empl.Prac.Cas. 1387, 23 Empl. Prac. Dec. P 31,030 MALMED, Edwin S., Kubacki, Stanley L., Lagakos, Gregory G., Murphy, Joseph T., Stern, James L. v. THORNBURGH, Richard L., Individually and as Governor of Pennsylvania, Allen, Ethel D., Individually and as Secretary of the Commonwealth of Pennsylvania, Casey, Robert E., Individually and as Treasurer of the Commonwealth of Pennsylvania, and Barbieri, Alexander F., Individually and as Pennsylvania State Court Administrator, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 565

621 F.2d 565 22 Fair Empl.Prac.Cas. 1387,
23 Empl. Prac. Dec. P 31,030 MALMED, Edwin S., Kubacki, Stanley L., Lagakos, Gregory G.,
Murphy, Joseph T., Stern, James L.
v.
THORNBURGH, Richard L., Individually and as Governor of
Pennsylvania, Allen, Ethel D., Individually and as Secretary
of the Commonwealth of Pennsylvania, Casey, Robert E.,
Individually and as Treasurer of the Commonwealth of
Pennsylvania, and Barbieri, Alexander F., Individually and
as Pennsylvania State Court Administrator, Appellants. No. 79-2467. United States Court of Appeals,
Third Circuit. Argued April 21, 1980.
Decided May 13, 1980.

Page 567

Joseph Kenneth Hegedus, Deputy Atty. Gen., Allen C. Warshaw, Deputy Atty. Gen., Chief, Civ. Litigation, Edward G. Biester, Jr., Atty. Gen., Dept. of Justice, Commonwealth of Pennsylvania, Harrisburg, Pa., for appellants Thornburgh, Allen, and Casey.

Kathleen M. Quinn, Staff Atty., Administrative Office of Pennsylvania Courts, Philadelphia, Pa., for appellant Barbieri.

Stephen M. Feldman, Feldman & Feldman, Philadelphia, Pa., for appellees.

Before ALDISERT, WEIS and GARTH, Circuit Judges.

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 Constitution, which requires retirement of state judges at age seventy, violates the equal protection and due process clauses of the fourteenth amendment. The district court held that it does and enjoined the appellants from enforcing the provision and its enabling statutes. Because we conclude that Article V, § 16(b) does not violate the fourteenth amendment, we reverse.

Five judges of the Court of Common Pleas of Philadelphia County, each of whom is nearing his seventieth birthday, brought this action for declaratory and equitable relief against the Governor, the Secretary of the Commonwealth, the Treasurer, and the Court Administrator 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.

I.

A special constitutional convention convened in 1967 and made recommendations for revising the Pennsylvania Constitution in four discrete fields: legislative apportionment; judicial administration, organization, selection, 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 provides in relevant part: "Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years." This article was the product of extensive deliberation by the Judiciary Subcommittee of the Preparatory Committee for the Pennsylvania Constitutional Convention, under the direction of Dean Burton R. Laub. The subcommittee identified as a matter of concern "the problem of retiring judges who are mentally or physically unable to perform their duties either by reason of old age or by reason of some mental or physical ailment." ¹ 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 withdrawal

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of retirement. Others are not financially independent, and may find retirement and disability pensions inadequate. ²

In Reference Manual No. 1, distributed to the delegates by the Preparatory Committee, chaired by then Lieutenant Governor, now United States District Judge, Raymond J. Broderick, the committee stated: "Mandatory retirement does substantially increase judicial manpower when a plan for part-time post-retirement service exists. The combined old experience and new energetic manpower helps alleviate case back-log." ³ Noting that "(a)bout one-half of the states require judges to retire at a fixed age, with seventy years being the most common," ⁴ the Judiciary Subcommittee summarized the arguments favoring a mandatory retirement provision. In Reference Manual No. 5, it noted that a mandatory retirement policy

substantially increases judicial manpower when a plan for part-time post-retirement service exists. By continually bringing in younger judges while retaining the part-time services of willing and able retired judges, a system of mandatory retirement plus post-retirement service helps solve the pressing problem of court congestion and delay. As mentioned previously, Pennsylvania already has provided for voluntary post-retirement service.

eliminates unpleasantness of removing aged and disabled judges on an individual selective basis. Mandatory retirement is more impersonal than individual removal; everyone is treated alike. The difficulty 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 employments. There appears to be no good reason why judges should be treated differently from other public officials, teachers, executives, and other professional people who are subject to compulsory retirement. ⁵

The subcommittee reported that the American Bar Association had proposed that judges be required to retire at an age fixed by statute, but not less than age sixty-five. ⁶ Moreover, the Pennsylvania Bar Association had advocated mandatory retirement for Pennsylvania trial judges at an age not younger than seventy. ⁷ The National Municipal League had made a similar recommendation in its model state constitution. ⁸

The parties have stipulated that the Judiciary Subcommittee of the Preparatory Committee drafted what subsequently became Article V of the Pennsylvania Constitution

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when ratified by popular vote on April 23, 1968. ⁹ A fair reading of Reference Manual No. 5 and a thorough examination of the Journal of the Constitutional 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 perform their judicial duties when they reach 70 years of age . . . ." 478 F.Supp. at 1008. ¹⁰ Therefore, the reasons stated to the delegates by the convention's Preparatory Committee are central to a proper analysis of § 16(b) because they constitute the only record of the legislative purpose underlying the provision.

In reviewing a state statute or constitutional provision under the due process or equal protection clause, a court must determine if the provision rationally furthers any legitimate state objective. "For these purposes, it is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legislative decision . . . ." Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (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, 95 S.Ct. 2457, 2474, 45 L.Ed.2d 522 (1975); Williamson v. Lee Optical Inc., 348 U.S. 483, 487-90, 75 S.Ct. 461, 464-65, 99 L.Ed. 563 (1955); Trafelet v. Thompson, 594 F.2d 623, 626 (7th Cir.), cert. denied, 444 U.S. 906, 100 S.Ct. 219, 62 L.Ed.2d 142 (1979). The legitimate purpose justifying the provision need not be the primary purpose of the provision. McGinnis v. Royster, 410 U.S. 263, 276, 93 S.Ct. 1055, 1062, 35 L.Ed.2d 282 (1973). Although our examination would not necessarily be limited to the purposes explicitly stated in the documents of the Judiciary Subcommittee, we conclude that the objectives therein are sufficient to uphold § 16(b) under both the equal protection and due process clauses.

II.

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 examining 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 particularly applicable. Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam). In Murgia, the Court rejected a challenge to a Massachusetts statutemandating

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retirement of uniformed state patrolmen at age fifty. The district court had held that the compulsory retirement requirement was not rationally related to the legislative objective of assuring physical ability of active officers. In reversing, the Court agreed with...