Rittenband v. Cory

• Citation: 205 Cal.Rptr. 576,159 Cal.App.3d 410
• Court: California Court of Appeals
• Decision Date: 22 August 1984
• Parties: Laurence J. RITTENBAND, et al., Plaintiffs and Appellants, v. Kenneth CORY, as State Controller, Public Employees Retirement System, Defendants and Respondents. A018991.

Page 576

205 Cal.Rptr. 576

159 Cal.App.3d 410

Laurence J. RITTENBAND, et al., Plaintiffs and Appellants, v. Kenneth CORY, as State Controller, Public Employees Retirement System, Defendants and Respondents.

A018991.

Court of Appeal, First District, Division 2, California.

Aug. 22, 1984.

Hearing Denied Nov. 15, 1984.

Feldman, Waldman & Kline, Richard L. Jaeger, Paul J. Dion, Deborah M. Lauter, San Francisco, Levine, Krom & Unger, Leonard Unger, Beverly Hills, for plaintiffs and appellants.

John K. Van de Kamp, Atty. Gen., Eugene Hill, Asst. Atty. Gen., Harold Teasdale, Caren C. Dorshkind, Deputy Attys. Gen., San Francisco, for defendants and respondents.

KLINE, Presiding Justice.

This case presents a constitutional challenge to the use of age as a proxy for judicial competence.

Plaintiffs, who are California judges suing on behalf of themselves and all other judges similarly situated, ¹ appeal from a judgment upholding the constitutionality of article 3.6 of the Judges' Retirement Law (Gov.Code, §§ 75075-75079), ² which encourages judges to retire at or before age 70 by providing reduced retirement benefits to judges choosing to retire after age 70 and to their surviving spouses.

Plaintiffs challenge the statute on equal protection grounds contending that it impermissibly infringes on assertedly fundamental rights to seek and hold elective office to vote, and to pursue a lawful occupation; that it unconstitutionally conditions the receipt of pension benefits upon the relinquishment of those fundamental rights; and that even were fundamental rights not at issue, the statute violates equal protection as its age based classification is not rationally related to a legitimate state purpose.

STATEMENT OF THE CASE

In rendering judgment for defendants State Controller and the Public Employees Retirement System the trial court, sitting without a jury, specifically concluded that the provisions of article 3.6 of the Judges' Retirement Law do not violate the equal protection clause of the California Constitution, and that strict scrutiny was not required as the law neither involves a suspect classification nor impairs any fundamental rights. Applying the standard of minimal rationality, the court found that in adopting article 3.6 the Legislature's primary purpose was to encourage judges to retire at or before age 70 and thereby prevent a superannuated judiciary. The trial court held that the statute "serves the legitimate state purpose of maintaining the competency and work capacity of the judiciary."

FACTS

California law, unlike that of several of our sister states, ³ does not provide for the mandatory retirement of judges. Our Constitution simply directs the Legislature to "provide for retirement, with reasonable allowance, of judges of courts of record for age or disability." (Cal. Const., art. VI, § 20.)

"In 1953 the present Judges' Retirement Law was adopted, which provided an allowance for a retiring or disabled judge of half the salary of his office. (Gov.Code, § 75032.) No allowance was provided for a surviving spouse. Later that year a provision was added allowing a retiring or disabled judge to apply the actuarial equivalent of his retirement allowance to a lesser optional settlement payment to the judge for life and thereafter to his surviving spouse for life. (Gov.Code, §§ 75070, 75071.)" McCourtney v. Cory (1981) 123 Cal.App.3d 431, 435, 176 Cal.Rptr. 639. ⁴

Eligibility to retire for age and service begins at age 60 with 20 years of service credited. The length of service required for retirement gradually decreases above age 65 to age 70 at which time the requirement for retirement benefits is 10 years of service. (§ 75025.)

In 1959 the Judges' Retirement Law was amended by adding article 3.6, which provides increased benefits for judges who retire at or before age 70 and an allowance was provided for such a judge's surviving spouse. Pursuant to article 3.6 a judge with 20 or more years of service who retires at or before the designated age may elect to receive a retirement benefit of 75 percent of the current salary of an active judge holding the judicial office last held by the retiring judge. ⁵ A judge with more than 10 but fewer than 20 years service receives a benefit of 65 percent of such current salary. (§§ 75075, 75076, 75079.)

Because a judge must serve a minimum of 10 years in office to receive any retirement allowance, judges who assume office after the age of 60 must remain in office after age 70 to receive a minimum 50 percent allowance and can never qualify for the higher benefits.

The retirement allowance is payable for the balance of the judge's life, with an allowance thereafter to the judge's surviving spouse equal to one-half of the judge's retirement allowance until the death or remarriage of the surviving spouse. (§ 75077.) If a judge elects not to retire at age 70 and subsequently dies after having later retired, the surviving spouse is not entitled to such benefit.

At trial the parties stipulated as follows concerning the impact of advancing age upon judges: "Physical ability generally declines with age. Mental ability may or may not decline correspondingly. There is no evidence that age 70 is the specific chronological age at which physical or mental decline may commence or occur or at which failure or inability to perform duties may commence or occur or at which persons will suffer disabilities that interfere with the performance of their duties. In fact, it may not be the specific chronological age when such impairment, decline, failure to perform duties or suffering of disabilities that interfere with the performance of duties commences or occurs. Further, there is no evidence to indicate that individual judges or judges as a group suffer at or around the age of 70 a physical or mental decline, a failure or inability to perform duties or disabilities that interfere with the performance of their duties."

In addition, the trial court found that the position of judge is an extremely demanding one, both mentally and physically, that both trial and appellate judges carry very heavy workloads, and that many courts in this state have significant backlogs of work. The court also found that "[m]ost judges who retire at or before age 70 are persuaded to do so because of the economic impact of Article 3.6 ...."

I.

The first step in our analysis is to establish the standard of review to which the protested classification must be subjected. "In considering laws challenged under the equal protection clause, the United States Supreme Court has applied either the 'rational basis' test or the 'strict scrutiny' (also referred to as the 'compelling state interest') test, depending upon the interest affected or the classification involved. (Dunn v. Blumstein (1972) 405 U.S. 330, 335 [92 S.Ct. 995, 999, 31 L.Ed.2d 274] ....) The latter test will be employed in cases involving 'suspect classifications' or where the challenged legislation adversely affects 'fundamental interests'; otherwise the former test will prevail. (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785 [87 Cal.Rptr. 839, 471 P.2d 487] ....)" (Bay Area Women's Coalition v. City and County of San Francisco (1978) 78 Cal.App.3d 961, 965-966, 144 Cal.Rptr. 591.) As described by the California Supreme in Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785, 87 Cal.Rptr. 839, 471 P.2d 487, the rational basis test has been applied by the United States Supreme Court in the area of economic regulation where "the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. [Citations.] [p] On the other hand, in cases involving 'suspect classifications' or touching on 'fundamental interests,' the court has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. [Citations.] Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose." (Fns. omitted.) (See Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16-17, 95 Cal.Rptr. 329, 485 P.2d 529]; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16-17, 112 Cal.Rptr. 786, 520 P.2d 10].)

Plaintiffs acknowledge that California has followed the two-tier approach employed by the United States Supreme Court in reviewing legislative classifications under the equal protection clause. ⁶ (See Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at p. 16, 95 Cal.Rptr. 329, 485 P.2d 529; Reece v. Alcoholic Bev. etc. Appeals Bd. (1976) 64 Cal.App.3d 675, 679, 134 Cal.Rptr. 698; D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at pp. 16-17, 112 Cal.Rptr. 786, 520 P.2d 10; Hull v. Cason (1981) 114 Cal.App.3d 344, 375, 171 Cal.Rptr. 14.)

We note, preliminarily, that age is not recognized under either the California or the federal Constitution as a "suspect" classification, and plaintiffs do not otherwise contend. (See, e.g. Massachusetts Bd. of Retirement v. Murgia (1976) 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520; Vance v. Bradley (1979) 440 U.S. 93, 96-97, 99 S.Ct. 939, 942-943, 59 L.Ed.2d 171; Lamb v. Scripps College (9th Cir.1980) 627 F.2d 1015, 1018-1019; Kubik v. Scripps College (1981) 118 Cal.App.3d 544, 551-552, 173 Cal.Rptr. 539; American Federation of Teachers College Guild v. Board of Trustees (1976) 63 Cal.App.3d 800, 134 Cal.Rptr. 111; Townsend v. County of Los Angeles (1975) 49 Cal.App.3d 263, 267-270, 122 Cal.Rptr. 500.) Plaintiffs maintain instead that the statute must be strictly scrutinized because the disparate treatment of judges who are 70 years of age or more impinges on assertedly "fundamental rights" to pursue an occupation, to seek and hold elective...