Malmed v. Thornburgh

621 F.2d 565, 22 Fair Empl. Prac. Cas. (BNA) 1387, 1980 U.S. App. LEXIS 17593, 23 Empl. Prac. Dec. (CCH) 31,030
CourtCourt of Appeals for the Third Circuit
DecidedMay 13, 1980
DocketNo. 79-2467
StatusPublished
Cited by97 cases

This text of 621 F.2d 565 (Malmed v. Thornburgh) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malmed v. Thornburgh, 621 F.2d 565, 22 Fair Empl. Prac. Cas. (BNA) 1387, 1980 U.S. App. LEXIS 17593, 23 Empl. Prac. Dec. (CCH) 31,030 (3d Cir. 1980).

Opinion

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal by four Pennsylvania officials requires us to decide if Article V, § 16(b) of the Pennsylvania Constitution, which requires retirement of state judges at age seventy, violates the equal protection and due process clauses of the fourteenth amendment. The district court held that it does and enjoined the appellants from enforcing the provision and its enabling statutes. Because we conclude that Article V, § 16(b) does not violate the fourteenth amendment, we reverse.

Five judges of the Court of Common Pleas of Philadelphia County, each of whom is nearing his seventieth birthday, brought this action for declaratory and equitable relief against the Governor, the Secretary of the Commonwealth, the Treasurer, and the Court Administrator of Pennsylvania. The action was tried without a jury on April 17, 18, and 20, 1979. On September 21, 1979, the court handed down its opinion and order, Malmed v. Thornburgh, 478 F.Supp. 998 (E.D.Pa.1979), containing extensive findings of fact. It held that the mandatory retirement provision of Article V, § 16(b) conflicts with both the due process and equal protection clauses of the fourteenth amendment of the United States Constitution, declaring the provision null and void, and enjoining the enforcement of the provision and its enabling statutes “as to any judge of the Court of Common Pleas.” 478 F.Supp. at 1016. Governor Thornburgh and the other named defendants have appealed.

I.

A special constitutional convention convened in 1967 and made recommendations for revising the Pennsylvania Constitution in four discrete fields: legislative apportionment; judicial administration, organization, selection, and tenure; local government; and taxation and state finances. A new Judiciary Article was adopted on April 23, 1968, including Article V, § 16(b), which provides in relevant part: “Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years.” This article was the product of extensive deliberation by the Judiciary Subcommittee of the Preparatory Committee for the Pennsylvania Constitutional Convention, under the direction of Dean Burton R. Laub. The subcommittee identified as a matter of concern “the problem of retiring judges who are mentally or physically unable to perform their duties either by reason of old age or by reason of some mental or physical ailment.”1 The subcommittee described this problem as

a sensitive and delicate matter. Practically all lawyers and judges are familiar with the problem, but prefer to keep it in the legal family. Too often the disabled judges choose to remain on the bench despite their failing powers. Why do aged and disabled judges refuse to retire? There probably are many reasons, some personal and others objective. Some prefer the active life of a judge to the with[568]*568drawal of retirement. Others are not financially independent, and may find retirement and disability pensions inadequate.2

In Reference Manual No. 1, distributed to the delegates by the Preparatory Committee, chaired by then Lieutenant Governor, now United States District Judge, Raymond J. Broderick, the committee stated: “Mandatory retirement does substantially increase judicial manpower when a plan for part-time post-retirement service exists. The combined old experience and new energetic manpower helps alleviate case backlog.” 3 Noting that “[ajbout one-half of the states require judges to retire at a fixed age, with seventy years being the most common,”4 the Judiciary Subcommittee summarized the arguments favoring a mandatory retirement provision. In Reference Manual No. 5, it noted that a mandatory retirement policy

substantially increases judicial manpower when a plan for part-time post-retirement service exists. By continually bringing in younger judges while retaining the part-time services of willing and able retired judges, a system of mandatory retirement plus post-retirement service helps solve the pressing problem of court congestion and delay. As mentioned previously, Pennsylvania already has provided for voluntary post-retirement service, eliminates unpleasantness of removing aged and disabled judges on an individual selective basis. Mandatory retirement is more impersonal than individual removal; everyone is treated alike. The difficulty and unpleasantness of determining which judges are senile and which are not is largely avoided.
prevent[s] harm by few senile judges [which] more than offsets loss of judges who retain full powers past normal age. Besides, the services of able retired judges may be secured by a provision for post-retirement service,
corresponds with current trend towards mandatory retirement in other public and private employments. There appears to be no good reason why judges should be treated differently from other public officials, teachers, executives, and other professional people who are subject to compulsory retirement.5

The subcommittee reported that the American Bar Association had proposed that judges be required to retire at an age fixed by statute, but not less than age sixty-five.6 Moreover, the Pennsylvania Bar Association had advocated mandatory retirement for Pennsylvania trial judges at an age not younger than seventy.7 The National Municipal League had made a similar recommendation in its model state constitution.8

The parties have stipulated that the Judiciary Subcommittee of the Preparatory Committee drafted what subsequently became Article V of the Pennsylvania Consti[569]*569tution when ratified by popular vote on April 23, 1968.9 A fair reading of Reference Manual No. 5 and a thorough examination of the Journal of the Constitutional Convention discloses no basis for the district court’s major premise that the predominant purpose of § 16(b) is “a presumption that all judges become incompetent to perform their judicial duties when they reach 70 years of age . . . .” 478 F.Supp. at 1008.10 Therefore, the reasons stated to the delegates by the convention’s Preparatory Committee are central to a proper analysis of § 16(b) because they constitute the only record of the legislative purpose underlying the provision.

In reviewing a state statute or constitutional provision under the due process or equal protection clause, a court must determine if the provision rationally furthers any legitimate state objective. “For these purposes, it is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legislative decision . . .” Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960). The court may even hypothesize the motivations of the state legislature to find a legitimate objective promoted by the provision under attack. See Weinberger v. Salfi, 422 U.S. 749, 780, 95 S.Ct. 2457, 2474, 45 L.Ed.2d 522 (1975); Williamson v. Lee Optical Inc., 348 U.S. 483, 487-90, 75 S.Ct. 461, 464-65, 99 L.Ed. 563 (1955); Trafelet v. Thompson, 594 F.2d 623, 626 (7th Cir.), cert. denied, 444 U.S. 906, 100 S.Ct. 219, 62 L.Ed.2d 142 (1979).

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621 F.2d 565, 22 Fair Empl. Prac. Cas. (BNA) 1387, 1980 U.S. App. LEXIS 17593, 23 Empl. Prac. Dec. (CCH) 31,030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malmed-v-thornburgh-ca3-1980.