Malmed v. Thornburgh

• Decision Date: 21 September 1979
• Docket Number: Civ. A. No. 78-1418.
• Parties: Edwin S. MALMED, Stanley L. Kubacki, Gregory G. Lagakos, Joseph T. Murphy, and James L. Stern, Plaintiffs, v. Richard L. THORNBURGH, Individually and as Governor of Pennsylvania, Ethel D. Allen, Individually and as Secretary of the Commonwealth of Pennsylvania, Robert E. Casey, Individually and as Treasurer of the Commonwealth of Pennsylvania, and Alexander F. Barbieri, Individually and as Pennsylvania State Court Administrator, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

478 F. Supp. 998

Edwin S. MALMED, Stanley L. Kubacki, Gregory G. Lagakos, Joseph T. Murphy, and James L. Stern, Plaintiffs, v. Richard L. THORNBURGH, Individually and as Governor of Pennsylvania, Ethel D. Allen, Individually and as Secretary of the Commonwealth of Pennsylvania, Robert E. Casey, Individually and as Treasurer of the Commonwealth of Pennsylvania, and Alexander F. Barbieri, Individually and as Pennsylvania State Court Administrator, Defendants.

Civ. A. No. 78-1418.

United States District Court, E. D. Pennsylvania.

September 21, 1979.

Stephen M. Feldman, Philadelphia, Pa., for plaintiffs.

Joseph K. Hegedus, Deputy Atty. Gen., Harrisburg, Pa., for Thornburgh, Allen and Casey.

Jonathan Vipond, III, Philadelphia, Pa., for Barbieri.

ADJUDICATION

DITTER, District Judge.

Plaintiffs in this case are five judges of the Court of Common Pleas of the First Judicial District of Pennsylvania, which consists of the County of Philadelphia. They brought this action to challenge the Pennsylvania Constitution's requirement that all state court justices, judges, and justices of the peace retire at age 70. The complaint charges that this provision violates the plaintiffs' rights to both due process and equal protection of the laws as secured by the Constitution of the United States. Plaintiffs ask me to declare that the mandatory retirement section of the Pennsylvania Constitution is null and void and that the defendant state officials should be enjoined from enforcing it.

This case was tried without a jury. After considering all the evidence, as well as the briefs and arguments of counsel, I conclude that the first sentence of Article V, Section 16(b) of the Pennsylvania Constitution is in conflict with both the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, at least insofar as it applies to judges of the Courts of Common Pleas. This provision is therefore null and void, and its enforcement, as to Common Pleas Court judges, must be enjoined.

My holding is based upon the following

FINDINGS OF FACT

1. Plaintiff, Edwin S. Malmed, is a Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania, composed of the County of Philadelphia, and was first appointed a Judge of the Court of Common Pleas on December 30, 1971. Plaintiff Malmed holds office by virtue of election in November, 1973, and pursuant to a Commission issued by the Governor of Pennsylvania on December 10, 1973, which certified plaintiff Malmed's right to hold said office from the first Monday of January, 1974.¹

2. Plaintiff Malmed will attain his seventieth birthday on January 2, 1982.

3. Plaintiff, Stanley L. Kubacki, is a Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania, composed of the County of Philadelphia, and was first appointed a Judge of the Court of Common Pleas on December 30, 1971. Plaintiff Kubacki holds office by virtue of election in November, 1973, and pursuant to a Commission issued by the Governor of Pennsylvania on December 10, 1973, which certified plaintiff Kubacki's right to hold said office from the first Monday of January, 1974.

4. Plaintiff Kubacki will attain his seventieth birthday on August 25, 1985.

5. Plaintiff, Gregory G. Lagakos, is a Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania, composed of the County of Philadelphia. Plaintiff Lagakos was appointed as a Judge of the County Court of Philadelphia on August 26, 1965, and elected in November, 1965, for a ten year term commencing in January 1966. On January 1, 1969, by virtue of an amendment of the Pennsylvania Constitution, plaintiff Lagakos became a Judge of the Court of Common Pleas for a term to be completed in January 1976. Plaintiff Lagakos was retained in an election in November, 1975, and currently holds office by virtue of such election and pursuant to a Commission issued by the Governor of Pennsylvania on December 17, 1975, which certified plaintiff Lagakos' right to hold said office from the first Monday of January, 1976.

6. Plaintiff Lagakos will attain his seventieth birthday on October 16, 1982.

7. Plaintiff, Joseph T. Murphy, is a Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania composed of the County of Philadelphia. Plaintiff Murphy was appointed as a Judge of the Municipal Court of Philadelphia County on December 27, 1968. In November, 1969, plaintiff Murphy was elected as a Judge of the Municipal Court of Philadelphia County for a six-year term commencing in January, 1970. On December 31, 1971, plaintiff Murphy was appointed as Judge of the Court of Common Pleas. Plaintiff Murphy currently holds office by virtue of election in November, 1973, and pursuant to a Commission issued by the Governor of Pennsylvania on December 10, 1973, which certified plaintiff Murphy's right to hold said office from the first Monday of January, 1974.

8. Plaintiff Murphy will attain his seventieth birthday on October 21, 1980.

9. Plaintiff, James L. Stern, is a Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania composed of the County of Philadelphia. Plaintiff Stern was appointed as a Judge of the County Court of Philadelphia in June, 1964, and elected, in November, 1965, for a ten-year term commencing in January, 1966. On January 1, 1969, by virtue of an amendment of the Pennsylvania Constitution, plaintiff Stern became a Judge of the Court of Common Pleas for a term to be completed in January 1976. Plaintiff Stern was retained in an election in November 1975, and currently holds office by virtue of such election and pursuant to a Commission issued by the Governor of Pennsylvania on December 17, 1975, which certified his right to hold said office from the first Monday of January 1976.

10. Plaintiff Stern will attain his seventieth birthday on January 26, 1980.

11. Defendant Richard L. Thornburgh is the Governor of the Commonwealth of Pennsylvania.

12. Defendant Ethel D. Allen is the Secretary of the Commonwealth of Pennsylvania.

13. Defendant Robert E. Casey is the Treasurer of the Commonwealth of Pennsylvania.

14. Defendant Alexander F. Barbieri is the Court Administrator of the Commonwealth of Pennsylvania.

15. Article V, Section 15 of the Pennsylvania Constitution (Adopted in 1968 to be effective January 1, 1969) provides for the tenure and election of judges and justices as follows:

(a) The regular term of office of justices and judges shall be ten years and the regular term of office for judges of the municipal court and traffic court in the City of Philadelphia and of justices of the peace shall be six years. The tenure of any justice or judge shall not be affected by changes in judicial districts or by reduction in the number of judges.

(b) A justice or judge elected under section thirteen (a), appointed under section thirteen (d) or retained under this section fifteen (b) may file a declaration of candidacy for retention election with the officer of the Commonwealth who under law shall have supervision over elections on or before the first Monday of January of the year in which his term of office expires. If no declaration is filed, a vacancy shall exist upon the expiration of the term of office of such justice or judge, to be filled by election under section thirteen (a) or by appointment under section thirteen (d) if applicable. If a justice or judge files a declaration, his name shall be submitted to the electors without party designation, on a separate judicial ballot or in a separate column on voting machines, at the municipal election immediately preceding the expiration of the term of office of the justice or judge, to determine only the question whether he shall be retained in office. If a majority is against retention, a vacancy shall exist upon the expiration of his term of office, to be filled by appointment under section thirteen (b) or under section thirteen (d) if applicable. If a majority favors retention, the justice or judge shall serve for the regular term of office provided herein, unless sooner removed or retired. At the expiration of each term a justice or judge shall be eligible for retention as provided herein, subject only to the retirement provisions of this article.

16. Article V, Section 16(b) of the Pennsylvania Constitution (Adopted in 1968) to be effective January 1, 1969) provides:

(b) Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years. Former and retired justices, judges and justices of the peace shall receive such compensation as shall be provided by law. No compensation shall be paid to any justice, judge or justice of the peace who is suspended or removed from office under section eighteen of this article or under article six.

17. Defendant Thornburgh in accordance with Article V, Section 13(b) of the Pennsylvania Constitution nominates and, with the advice and consent of two-thirds of members elected to the Senate, appoints a justice or judge to fill a vacancy in the office of justice or judge. Act of April 9, 1929, P.L. 177, No. 175 § 207.1 as added to by Act of November 8, 1976, P.L. 1109, No. 227 § 2, 71 P.S. § 67.1. Any judicial office previously held by a judge or justice who has attained seventy years of age has been considered to be a vacancy to be filled pursuant to this gubernatorial appointment power.

18. Defendant Thornburgh issues a commission to each person elected as a judge or justice. Act of June 3, 1937, P.L. 1333, art. XIV, § 1415, as amended Act of May 18, 1945, P.L. 694, No. 298, § 1, 25 P.S. § 3165. Defendant Thornburgh issues commissions to persons elected to judicial offices made vacant by a judge or justice who has attained seventy years of age.

19. Defendant Allen is responsible for sending to the county board of elections of each county in Pennsylvania a written notice designating all the offices, including judicial...