Bernstein v. State

• Decision Date: 22 September 2011
• Docket Number: 2010.,Misc. No. 1,Sept. Term
• Citation: 29 A.3d 267,113 Fair Empl.Prac.Cas. (BNA) 781,422 Md. 36
• Parties: Charles G. BERNSTEINv.STATE of Maryland, et al.
• Court: Maryland Court of Appeals

422 Md. 36

29 A.3d 267

113 Fair Empl.Prac.Cas. (BNA) 781

Charles G. BERNSTEIN

v.STATE of Maryland, et al.

Misc. No. 1

Sept. Term

2010.

Court of Appeals of Maryland.

Sept. 22, 2011.

Cyril V. Smith (A. Paul Pineau of Zuckerman Spaeder LLP, Baltimore, MD; Andrew Jay Graham of Kramon & Graham, P.A., Baltimore, MD; Michael Schatzow of Venable LLP, Baltimore, MD), on brief, for Appellant.William F. Brockman, Deputy Solicitor General (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellees.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.BELL, C.J.

I.

Charles G. Bernstein, the appellant, was appointed on October 10, 2006, by Governor Robert L. Ehrlich, as an associate judge of the Circuit Court for Baltimore City. As required by Article IV, § 3 of the Maryland Constitution, Judge Bernstein stood for election and, on November 4, 2008, was elected for a fifteen-year term of office as an elected circuit court judge. Nevertheless, just over a year into his term, on December 29, 2009, the date of his seventieth birthday, Judge Bernstein was required to retire as a result of that same section of the Maryland Constitution.

Prior to his retirement, on November 3, 2009, Judge Bernstein filed a complaint in the United States District Court for the District of Maryland, challenging his mandatory retirement and naming the State of Maryland, Governor Martin O'Malley, and the Maryland General Assembly as defendants. His argument was, and is, that Article IV, § 3 has application only to judges who “attain” the age of seventy while they are in office and, thus, interpreting it as prescribing a mandatory retirement age for all Maryland circuit court judges, as well as for those persons who might aspire to be a circuit court judge, violates the rights he has been guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Noting that there is no Maryland case which provides a “definitive interpretation” of Article IV, § 3, the federal district court certified to this Court the following questions:

“1. Does the Maryland Constitution (i) require a sitting judge to retire upon reaching seventy, (ii) prohibit the Governor from appointing a person seventy or older to the bench, and (iii) prohibit a person seventy or older from running for a judicial office?”

“2. Conversely, does the Maryland Constitution permit individuals seventy or older to run for a judicial office and, if elected, to serve out their entire terms?”

II.

At the center of this controversy is Article IV, § 3 of the Maryland Constitution. It provides:

“Except for the Judges of the District Court, the Judges of the several Courts other than the Court of Appeals or any intermediate courts of appeal shall, subject to the provisions of Section 5 of this Article of the Constitution, be elected in Baltimore City and in each county, by the qualified voters of the city and of each county, respectively, all of the said Judges to be elected at the general election to be held on the Tuesday after the first Monday in November, as now provided for in the Constitution. Each of the said Judges shall hold his office for the term of fifteen years from the time of his election, and until his successor is elected and qualified, or until he shall have attained the age of seventy years, whichever may first happen, and be re-eligible thereto until he shall have attained the age of seventy years, and not after.”

Md. Const. art. IV, § 3. Judge Bernstein views this provision, particularly the second sentence, which he considers the relevant portion, as being “crystal clear” and dispositive of any question pertaining to the retirement of circuit court judges. Thus, he asserts, the “meaning of the [constitutional] provisions [related to the retirement age for judges] can be gleaned from the text of § 3 alone.” Judge Bernstein reads § 3 as clearly and unambiguously requiring retirement only in the case of circuit court judges who “attain” the age of seventy while in office. It follows, therefore, he submits, that a person seventy years of age or older, not currently serving as a circuit court judge, may be appointed to fill a judicial vacancy or, should he or she choose, run for judicial office. Because, he continues, there is no rational basis for the distinction, § 3 fails to comport with the Equal Protection clause of the Fourteenth Amendment to the United States Constitution.

Judge Bernstein maintains that his interpretation of § 3 is confirmed by reference to other provisions of the Maryland Constitution. He directs our attention to Article IV, § 2, for example, which prescribes the qualifications for judicial service. Section 2 enumerates those qualifications, as follows:

“The Judges of all of the said Courts shall be citizens of the State of Maryland, and qualified voters under this Constitution, and shall have resided therein not less than five years, and not less than six months next preceding their election, or appointment, as the case may be, in the city, county, district, judicial circuit, intermediate appellate judicial circuit or appellate judicial circuit for which they may be, respectively, elected or appointed. They shall be not less than thirty years of age at the time of their election or appointment, and shall be selected from those who have been admitted to practice law in this State, and who are most distinguished for integrity, wisdom and sound legal knowledge.”

Md. Const. art. IV, § 2. Noting that this provision prescribes a minimum age for judicial service, but not a maximum one, he proffers that formulation as further justification for his interpretation and evidence that the Constitution does not preclude all seventy-plus year olds from seeking judicial office for the first time. He argues, if there were a universally-applicable age limit on judicial service, “one would expect to find it in [Article IV,] § 2, because that section unambiguously lays out the requirements for judicial service.”

The State also views Article IV, § 3 as clear and unambiguous; however, its interpretation produces a result diametrically opposite that espoused by the appellant. Unlike Judge Bernstein, it contends that the section not only clearly precludes a judge from continuing in office, but it does not permit anyone from being elected or appointed to judicial office after he or she “shall have attained the age of seventy.” This follows, the State submits, since, grammatically, “shall have attained” is phrased in the future perfect tense, i.e. the phrase “refer[s] to a past time within a future period,” ¹ and, thus, reflects an intent to include all people of, and over, age seventy, not just those who have yet to turn seventy. Therefore, because Article IV, § 3 provides for the expiration of a judge's term at the end of fifteen years or when the judge attains the age of seventy, “whichever may first happen,” the State points out that, read logically, the section would require that the term of a judge appointed or elected after the age of seventy would end before it began. The State concludes that Article IV, section 3 simply does not support the appellant's construction.

The State accuses Judge Bernstein of reading Article IV, § 3 without regard to its context. It also contends that his reading of Article IV, § 3 is the result of a hyper-technical textual analysis that should not be allowed to defeat the obvious intent of the Legislature, which proposed the provision, and the citizens, who adopted it by ratifying the Maryland Constitution. Moreover, the State contends that Judge Bernstein implicitly and improperly inserts into Article IV, § 3, the phrase, “while in office,” following the phrase, “shall have attained the age of seventy years.” The State believes this point to be of particular significance since, at one time, § 3 did include that phrase. Until 1932, it provided:

“Each of the said judges shall hold office for the term of fifteen years from the time of his election, and until his successor is elected and qualified, or until he shall have attained the age of seventy years, whichever may first happen, and be re-eligible thereto until he shall have attained the age of seventy years, and not after; but in the case of any judge who shall attain the age of seventy years whilst in office, such judge may be continued in office by the General Assembly for such further time as they may think fit, not to exceed the term for which he was elected.”

Md. Const. art. IV, § 3 (amended 1932) (emphasis added). The phrase was amended out of the Constitution in 1932. 1931 Laws of Md., ch. 479 (ratified Nov. 8, 1932).

The State argues, in addition, that Article IV, § 3 is part of a constitutional scheme and, thus, must be interpreted in context, as a part of that scheme. So doing, it asserts, supports its interpretation of the section. The State notes, in particular, Article IV, § 5, which provides:

“Upon every occurrence or recurrence of a vacancy through death, resignation, removal, disqualification by reason of age or otherwise, or expiration of the term of fifteen years of any judge of a circuit court, or creation of the office of any such judge, or in any other way, the Governor shall appoint a person duly qualified to fill said office, who shall hold the same until the election and qualification of his successor. His successor shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years (if the vacancy occurred in that way) or the first such general election after one year after the occurrence of the vacancy in any other way than through expiration of such term. Except in case of reappointment of a judge upon expiration of his term of fifteen years, no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed...