Kingston v. McLaughlin

• Decision Date: 19 December 1972
• Docket Number: Civ. A. No. 72-3551.
• Citation: 359 F. Supp. 25
• Parties: Allan Roy KINGSTON et al., Plaintiffs, v. Walter H. McLAUGHLIN et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

359 F. Supp. 25

Allan Roy KINGSTON et al., Plaintiffs, v. Walter H. McLAUGHLIN et al., Defendants.

Civ. A. No. 72-3551.

United States District Court, D. Massachusetts.

December 19, 1972.

Morris M. Goldings, Thomas B. Brennan, Edward M. Ginsburg, Boston, Mass., for plaintiffs.

James P. Kiernan, Paul A. Good, Asst. Attys. Gen., Boston, Mass., for defendants.

Andrew F. Lane, Ely, Bartlett, Brown & Proctor, Boston, Mass., for amicus curiae, Lawyers Committee for Civil Rights under law, Boston Urban Areas Project.

Harold Brown, Boston, Mass., for amicus curiae, Ad Hoc Committee.

Edward T. Dangel, III, Boston, Mass., for amicus curiae, Mass. Trial Lawyers Assoc.

Jonathan A. Weiss, New York City, for amicus curiae, Legal Services for the Elderly Poor.

Herbert P. Gleason, Corp. Counsel, by Mack K. Greenberg, Asst. Corp. Counsel, Boston, Mass., for Edmund W. Holmes.

Philip J. MacCarthy, Worcester, Mass., for Edward P. Bird, Treasurer of Worcester County.

Before COFFIN, Chief Circuit Judge, and PETTINE and FREEDMAN, District Judges.

PER CURIAM.

On November 7, 1972, the voters of Massachusetts approved an amendment to the Commonwealth's constitution which requires state judges attaining the age of seventy to retire. Eleven judges over seventy, who have been sitting prior to the adoption of the amendment, but who are now threatened with involuntary retirement, bring this action seeking to enjoin the enforcement of the constitutional amendment against them.

The judges argue that the amendment constitutes an unconstitutional impairment of the obligation of contract in violation of Article 1, Section 10, Clause 1 of the United States Constitution; that the amendment would deprive them of property without due process or just compensation, in violation of the Fourteenth Amendment; and that the Supremacy Clause would be violated if the amendment were to be applied to them.

Relief is sought against the Chief Justices of plaintiffs' respective courts, enjoining them from preventing plaintiffs from continuing to sit in their respective judicial offices; against the Commonwealth's Treasurer and Receiver General, enjoining him from reducing the judicial compensation of any of the plaintiffs by applying the Commonwealth's pension statutes to them; and against the Secretary of the Commonwealth, enjoining him from certifying to the Governor the votes cast on the constitutional amendment. Other defendants are Treasurers of three Massachusetts counties. Plaintiffs also seek a declaration that the constitutional amendment does not apply to judicial officers of the Commonwealth appointed prior to the effective date of the amendment.

A temporary restraining order was issued against certification of the votes on the amendment to the Governor. Shortly thereafter briefs were filed and this hearing was held on plaintiffs' request for a preliminary injunction.

The plaintiffs, each of them seventy years old or older, hold positions on the Massachusetts Superior Court, county Probate Courts, District Courts, and Municipal Courts. Four plaintiffs are Special Justices. All of the plaintiffs but two were appointed before 1956 and these two are Special Justices. Each was appointed pursuant to the Massachusetts Constitution, 2d part, Art. 1, c. 3, which, at the time of their appointments to the bench, read as follows, except for the clause in brackets:

"Article 1. The tenure, that all commissioned officers shall by law have in their offices, shall be expressed in their respective commissions. All judicial officers, duly appointed, commissioned and sworn, shall hold their offices during good behavior, excepting such concerning whom there is different provision made in this constitution; provided, nevertheless, the governor, with the consent of the council, may remove them upon the address of both houses of the legislature; and provided also that the governor, with the consent of the council, may after due notice and hearing retire them because of advanced age or mental or physical disability; and provided further, that upon attaining seventy years of age said judges shall be retired. Such retirement shall be subject to any provisions made by law as to pensions or allowances payable to such officers upon their voluntary retirement."

The Article of Amendment, which includes the bracketed clause, had previously been passed by two joint sessions of the legislature and was adopted by the Massachusetts voters on November 7, 1972. As interpreted by the Supreme Judicial Court of Massachusetts, the new amendment will take effect at the time of the final tabulation and determination of the vote in accordance with M.G. L.A. c. 54 § 115. Opinion of the Justices to His Excellency the Governor of the Commonwealth of Massachusetts, 1972 Mass.Adv.Sh. 1657, 287 N.E.2d 910. Both sides agree that the amendment was meant to apply both retrospectively and prospectively, i. e., to judges appointed in the past as well as to those to be appointed in the future. The plaintiffs contend that this amendment deprives them of certain "entitlements" in violation of the United States Constitution.

Salaries of Massachusetts judges are set by statute. See M.G.L.A. c. 217 § 30; c. 212 § 27; c. 218 §§ 75-78. While salaries may differ according to the court involved, and while the Chief Justice of any court usually is paid a higher salary, there are no provisions for increasing salary with length of service on the bench. Moreover, the legislature is empowered to reduce salaries of judges while they hold office. Opinion of the Justices, 271 Mass. 575, 171 N.E. 237 (1930).

Pensions are established by M.G.L.A. c. 32 § 65. Under M.G.L.A. c. 32 § 65A, generally, a judge is entitled to receive a pension for life equal to three-fourths of the annual salary payable to the judge at the time of such resignation or retirement. An optional plan is available under M.G.L.A. c. 32 § 65C, which allows a judge to elect a pension at a lesser annual rate than that provided in § 65A with the provision that upon his death, leaving as a survivor a widow who was his spouse at the time of his retirement or resignation, two-thirds of such pension for life at a lesser annual rate shall be paid to such widow, the lesser rate to be determined actuarially. The effect of computing the pension actuarially is that each year beyond age 70 the judge delays his retirement, it reduces the amount of the pension and survivor's benefit available. Pensions for Special Justices are provided for in M.G.L.A. c. 32 § 65B, which requires that the justice serve ten years on the bench to be entitled to a pension. These pensions do not require any financial contribution by the judges.

Application of the Massachusetts constitutional amendment to plaintiffs is alleged to violate the contract clause, the Fourteenth Amendment due process clause, and the Supremacy Clause of the United States Constitution. By their Supremacy Clause claim we do not understand plaintiffs to do any more than reiterate their Fourteenth Amendment and contract clause claims. Since, as noted below, the claimed right is one alleged to be created by contract, we must first ascertain whether a protectable right exists, before we reach the question whether its deprivation involves a violation of due process.

Article 1, Section 10 of the United States Constitution provides that "No State shall pass any . . . Law impairing the Obligation of Contracts." Protection of the contract clause is not limited to common law contracts, see P. Kauper, "What is a `Contract' Under the Contracts Clause of the Federal Constitution", 31 Mich.L.Rev. 187 (1931), and has been extended to rights created by and impaired by state constitutions. Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866 (1932). Protection also extends to implied contracts to pay for past services rendered. Fisk v. Jefferson Police Jury, 116 U.S. 131, 6 S.Ct. 329, 29 L.Ed. 587 (1885). A state may not assert immunity to a suit for injunctive relief when it is a party to a contract covered by the contract clause. Davis v. Gray, 16 Wall. 203, 83 U.S. 203, 232, 21 L.Ed. 447 (1873); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

The application of these principles demands a close scrutiny of the particular interest or right which is alleged to be impaired. While the existence of a contract and its terms are initially and primarily questions of state law, neither side urges that we abstain. More importantly, we approach our analysis by accepting plaintiffs' assertions as to state law,...