Hatten v. Rains

• Decision Date: 25 August 1988
• Docket Number: No. 87-6302,87-6302
• Citation: 854 F.2d 687
• Parties: 47 Fair Empl.Prac.Cas. 1617, 47 Empl. Prac. Dec. P 38,389 William M. HATTEN, Plaintiff-Appellant, v. Jack M. RAINS, Secretary of State for the State of Texas, et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 687

854 F.2d 687

47 Fair Empl.Prac.Cas. 1617,

47 Empl. Prac. Dec. P 38,389

William M. HATTEN, Plaintiff-Appellant, v. Jack M. RAINS, Secretary of State for the State of Texas, et al., Defendants- Appellees.

No. 87-6302.

United States Court of Appeals Fifth Circuit.

Aug. 25, 1988.

Karen A. Lerner, Houston, Tex., for plaintiff-appellant.

Lauri J. Schneidau, Atty. Gen., Lou Bright, Asst. Atty. Gen., Austin, Tex David F. Webb., Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, GARWOOD and JOLLY, Circuit Judges.

GOLDBERG, Circuit Judge:

I write today, at 82 years of age, with a heavy pen and an even heavier heart. The Honorable Judge William Hatten has served his district ably for over 20 years. His ample competence is stipulated by all parties. Yet today we are compelled by precedent to inform Judge Hatten that he may not be a candidate for reelection, simply because, tomorrow, he will celebrate his seventy-fifth birthday.

Judge Hatten challenges Art. V, Sec. 1-a of the Texas Constitution ("Art. V, Sec. 1-a"), which requires all Texas judges to retire at the age of 75. This appeal raises two issues under the Equal Protection Clause of the Fourteenth Amendment: first, whether a mandatory retirement age for judges, standing alone, constitutes invidious discrimination; and, second, whether mandatory judicial retirement, by barring Appellant from the ballot, violates the fundamental first amendment right to associate of Judge Hatten and his supporters.

I sincerely wish that our birthday message could be a happier one. However, the people of Texas have chosen youth over wisdom, and we are not free to meddle with their choice: ¹ the district court heard unrebutted evidence that judicial ability declines with age; and, more importantly, the Supreme Court has spoken twice, though summarily, in cases with virtually identical facts. ²

Though there is some merit to Judge Hatten's argument that Art. V, Sec. 1-a, violates fundamental first amendment rights our hands are tied by the Supreme Court. ³ Perhaps unfolding years will open eyes that are now closed. Until then we are bound by precedent to affirm.

I. Facts

William Hatten is currently the elected judge of the 176th Judicial District of Harris County, Texas. He has held this post for the last twenty years. On August 26, 1988, Judge Hatten will turn 75. His term of office expires December 31, 1988. Under Art. V, Sec. 1-a of the Texas Constitution, when a sitting judge turns 75, his seat becomes automatically vacant. Thereafter, judges over the age of 75 are entitled to sit as visiting or temporary judges at the discretion of the administrative judge of a state judicial district.

Because Judge Hatten will be over 75 before the beginning of his next term, he is ineligible to be placed on the ballot. Larry Veselka, Chairman of the Harris County Democratic Party, accordingly refused Judge Hatten's nominating petitions. Judge Hatten brought this suit challenging the constitutionality of Art. V, Sec. 1-a, and seeking access to the ballot. ⁴ Mr. Veselka then joined the lawsuit on behalf of the Harris County Democratic Party, as did several of Judge Hatten's supporters, claiming violation of their first amendment rights.

The district court held that Art. V, Sec. 1-a, is constitutional. Judge Hatten appeals.

II. Discussion

The equal protection clause of the fourteenth amendment guards against invidious discrimination. The clause invalidates classifications enacted with the intent to disadvantage a particular group, or which operate to deprive a class of people of their fundamental rights. Intent to discriminate is rarely evident on the face of a statute. The Supreme Court therefore examines the means-ends fit between a classification and its proffered legislative goal. The underlying insight is that the tighter the fit, the less likely the proferred justification is to be a pretext for intentional discrimination. The Supreme Court has used a multi-tiered, some would say sliding scale, analysis. Classifications which "impermissibly interfere with the exercise of a fundamental right or operate[ ] to the peculiar disadvantage of a suspect class" are subjected to strict judicial scrutiny, and must constitute the least restrictive means to achieve a compelling state interest. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); San Antonio School District v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 1287, 36 L.Ed.2d 16 (1973). Classifications which operate to the peculiar disadvantage of a quasi-suspect class are accorded intermediate scrutiny, and must bear a significant relationship to an important state end. See, e.g., Kirchberg v. Feenstra, 450 U.S. 455, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981). All other classifications need only bear a rational relationship to a legitimate legislative end. See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

To determine the constitutionality of Art. V, Sec. 1-a, we must first determine the level of scrutiny accorded classifications based on age, and whether the proffered justifications for that classification achieve the required means-end fit. We must then determine whether excluding Judge Hatten from the ballot burdens the fundamental rights of Judge Hatten or his supporters. We deal with these questions in order.

A. Scrutinizing Classifications Based on Age

1. Rational Basis Review

In Massachusetts Board of Retirement v. Murgia, 427 U.S. at 307, 96 S.Ct. at 2562, the Supreme Court determined that classifications based on age alone are entitled to only rational basis review. The Court examined a Massachusetts statute that required uniformed state police officers to retire at the age of fifty. ⁵

First, the Court addressed whether the elderly are a suspect class. As the Court put it, to be treated as a suspect class a group must have been "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." 427 U.S. at 313, 96 S.Ct. at 2566-2567 (quoting Rodriguez, 411 U.S. at 28, 93 S.Ct. at 1293-1294). Applying this standard, the Court noted, first, that while the treatment of the aged in the United States has not been wholly free of discrimination, the aged have not been "subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities," Murgia, 427 U.S. at 313, 96 S.Ct. at 2566-2567, and second, that "old age does not define a 'discrete and insular' group, United States v. Carolene Products Co., 304 U.S. 144, 152-152 n. 4, 58 S.Ct. 778, 783-784 n. 4, 82 L.Ed. 1234 (1938), in need of 'extraordinary protection from the majoritarian political process.' Instead, it marks a stage that each of us will reach if we live out our normal span." Murgia, 427 U.S. at 313-314, 96 S.Ct. at 2566-2567. The Court therefore deemed age to be a non-suspect classification, subject to only rational basis review.

Applying rational basis review to the statute, the Murgia Court noted that the state may legitimately seek "to protect the public by assuring physical preparedness of its uniformed police," Murgia, 427 U.S. at 314, 96 S.Ct. at 2567, and conceded that physical ability generally declines with age. The statute withstood rational basis review, even without any scientific evidence that any particular level of deterioration begins at age fifty. ⁶

The Supreme Court amplified the teachings of Murgia in Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979), where it considered the constitutionality of a maximum retirement age of 60 for foreign service officers. The Court reiterated that the aged, as a group, were not entitled to special judicial protection, and emphasized just how minimal that protection was:

The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Thus, we will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational.

440 U.S. at 98, 99 S.Ct. at 943. Applying this standard, the Supreme Court concluded that the mandatory provision served the legitimate goals of maintaining a vigorous service and creating promotion opportunities for younger officers.

2. Rational Basis Review of Mandatory Judicial Retirement

A number of federal and state courts have reviewed legislation setting mandatory judicial retirement ages. They have been unanimous in their conclusion that the Constitution allows states to require both elected and appointed judges to retire on or after their seventieth birthday. Malmed v. Thornburgh, 621 F.2d 565 (3rd Cir.), cert. denied, 449 U.S. 955, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980) (Pennsylvania constitutional provisions requiring retirement of judges at 70 upheld as rational); Trafelet v. Thompson, 594 F.2d 623 (7th Cir.), cert. denied, 444 U.S. 906, 100 S.Ct. 219, 62 L.Ed.2d 142 (1979) (Illinois statutory provision requiring retirement of elected judges at 70 upheld as rational); Rubino v. Ghezzi, 512 F.2d 431 (2d Cir.), cert. denied 423 U.S. 891, 96 S.Ct. 187, 46 L.Ed.2d 122 (1975) (New York statute requiring retirement of elected judges at 70 upheld).

Most recently, New York has passed on the same issue twice, both times upholding mandatory judicial retirement of elected judges at 70. Both times the Supreme Court has dismissed the appeals for want of a substantial federal question....