Driscoll et al v. Corbett et al
Filing
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MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SENIOR JUDGE BENJAMIN LERNER,
et al.,
Plaintiffs,
v.
THOMAS W. CORBETT, JR.,
GOVERNOR OF THE
COMMONWEALTH OF
PENNSYLVANIA, et al.,
Defendants.
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1:12-cv-2577
Hon. John E. Jones III
MEMORANDUM
September 24, 2013
Presently pending before this Court is a Motion to Dismiss (Doc. 14) under
civil procedural rule 12(b)(6), filed by Defendants Thomas W. Corbett, Governor
of the Commonwealth of Pennsylvania, and Carol T. Aichele, Secretary of the
Commonwealth. By this Motion, Defendants seek to dismiss each count of the
Amended Complaint (Doc. 10) filed by Plaintiffs, Senior Judge Benjamin Lerner
and Judges John W. Herron, Leonard N. Zito, and Gerald Solomon. For the
reasons that follow, this Court will grant the Motion in full and dismiss Plaintiffs’
Amended Complaint with prejudice.
I.
BACKGROUND
This matter concerns whether a Pennsylvania constitutional provision,
requiring that all justices, judges, and justices of the peace be retired in the year
that they turn 70,1 violates the Equal Protection and Due Process Clauses of the
Fourteenth Amendment of the United States Constitution. Plaintiffs are
Pennsylvania state court judges who will be required to retire before the
completion of their respective elected terms due to the passage of their 70th
birthdays.
Under Article V, Section 16 of the Pennsylvania Constitution, “[j]ustices,
judges and justices of the peace shall be retired on the last day of the calendar year
in which they attain the age of 70 years.” PA. CONST. art. V, § 16(b). This
provision was the product of a constitutional convention assembled in 1967-68,
purposed to consider certain revisions to the state charter. An iteration of the
proviso, mandating that judges retire “upon attaining the age of seventy years,”
PA. CONST. art. V, § 16(b) (1968), was adopted by the convention and ratified by
voters in 1968; the mandate was amended to its present form in 2001, defining that
judges must retire on December 31st of the year of their 70th birthday, see PA.
1
For ease of reference, this Memorandum will refer to the designated group as “judges”
or “jurists.”
2
CONST. art. V, § 16(b) (2001). Of additional note, jurists in Pennsylvania are
elected to fixed terms: justices and judges serve ten-year terms, while municipal
court judges and justices of the peace serve six. See PA. CONST. art. V, § 15(a).
Upon retiring, former jurists may be assigned to serve as senior judges, see id. §
16(c), receiving compensation on a per diem basis, see 204 Pa. Code. § 211.2(h).
This action originated in the Commonwealth Court of Pennsylvania, where
Plaintiffs lodged complaints raising issues under the federal and state
constitutions. Defendants filed a Removal Petition (Doc. 1) with this Court on
December 26, 2012, based on Plaintiffs’ federal claims. On January 25, 2013,
Plaintiffs filed an Amended Complaint (Doc. 10). Defendants filed a Motion to
Dismiss the Amended Complaint on February 11, 2013 (Doc. 14) and, later, a
supporting brief (Doc. 25).
Meanwhile, various of the plaintiffs in the state court action filed an
Application for Extraordinary Relief in the Supreme Court of Pennsylvania, which
that tribunal granted. See Driscoll v. Corbett, 64 A.3d 629 (Pa. 2013) (per
curiam). Soon thereafter, on April 3, 2013, this Court, with the parties’
agreement, issued an order (Doc. 27) staying the present matter for 90 days, in
anticipation of accelerated developments in the state court proceeding. Indeed,
within the 90-day period, the Pennsylvania Supreme Court published an opinion
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resolving the state constitutional issues in Defendants’ favor, see Driscoll v.
Corbett, 69 A.3d 197 (Pa. 2013), and, on July 2, 2013, this Court filed an order
(Doc. 29) lifting the stay and requiring the parties to recommence briefing of
Defendants’ Motion to Dismiss. At present, the motion has been fully briefed and
is ripe for disposition.
II.
STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) contends that the complaint
has failed to assert a claim upon which relief can be granted. See FED. R. CIV. P.
12(b)(6). In considering such motion, courts “accept all factual allegations as true,
construe the complaint in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the plaintiff may be
entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
To resolve a motion to dismiss based on Rule 12(b)(6), a court generally should
consider only the allegations in the complaint, as well as “documents that are
attached to or submitted with the complaint, . . . and any matters incorporated by
reference or integral to the claim, items subject to judicial notice, matters of public
record, orders, [and] items appearing in the record of the case.” Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citations and internal quotation
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marks omitted). Rule 12(b)(6) permits a court to grant a motion to dismiss if there
is a dispositive issue of law. See Neitzke v. Williams, 490 U.S. 319, 326 (1989).
III.
DISCUSSION
As noted, Plaintiffs’ Amended Complaint alleged violations under the Equal
Protection and Due Process Clauses of the Fourteenth Amendment. Defendants
argue that the claims are foreclosed by controlling precedent. We address each
issue in turn.
A.
EQUAL PROTECTION
As a foundational premise, Defendants maintain that rational basis review
applies to the present equal protection inquiry, explaining that age is not a suspect
classification. See Gregory v. Ashcroft, 501 U.S. 452, 470 (1991). Additionally,
they assert that, in general, there is no fundamental right to governmental
employment, see Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per
curiam) (in the equal protection context, indicating that a standard less than strict
scrutiny may be applied to state legislation restricting eligibility for public
employment opportunities), nor to judicial appointments specifically, see Malmed
v. Thornburgh, 621 F.2d 565, 570 (3d Cir. 1980) (citing Murgia, 427 U.S. at 313),
cert. denied, 449 U.S. 955 (1980). Accordingly, as the mandatory retirement
provision neither encroaches upon a fundamental right nor targets a suspect class,
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Defendants maintain that it merely must evidence a rational relationship to a
legitimate aim. See Romer v. Evans, 517 U.S. 620, 631 (1996); see also United
States v. Pollard, 326 F.3d 397, 410 (3d Cir. 2003) (stating that, in terms of
rational basis review, “where there are plausible reasons for [delineating the
classification], our inquiry is at an end” (quoting FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 313 (1993) (internal quotation marks and alteration omitted)).
In opposition, Plaintiffs advance that intermediate scrutiny should apply,
based on the age classification defined by Section 16(b) and the provision’s
impact on the right to work. As to the classification, Plaintiffs assert that the
group comprised of judges over 70 years-old qualifies as quasi-suspect. They
state that such heightened scrutiny is appropriate where the class (1) has been
historically subjected to discrimination; (2) exhibits a defining characteristic that
“frequently bears [a] relation to ability to perform or contribute to society”; (3)
presents “obvious, immutable, or distinguishing” attributes, defining it as a
distinct group; and (4) is “a minority or politically powerless.” Windsor v. United
States, 699 F.3d 169, 181 (2d Cir. 2012) (citations and internal quotation marks
omitted; alteration in original), aff’d on other grounds, 133 S.Ct. 2675 (2013). As
to the first factor, Plaintiffs contend that senior citizens are subject to stereotyping
in the employment context, citing Congress’s findings that older workers suffer
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“arbitrary [age] discrimination.” 29 U.S.C. § 621(a)(4). Plaintiffs note that the
Age Discrimination in Employment Act was expressly purposed to, inter alia,
prohibit such unfair treatment and promote the employment of older individuals
according to ability, not age. See id. § 621(b). With regard to the second
consideration, Plaintiffs concede that physical performance may decline with age,
but distinguish judicial duties as intellectual, maintaining that “age and experience
improve judges’ abilities.” Pls.’ Opp’n Br. (Doc. 32) at 12. As to the final factors,
Plaintiffs state that age is immutable and explain that, although older citizens are
not commonly viewed as politically powerless, the Supreme Court has indicated
that the final factor is “far less important than the others.” Id. at 13; see City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 472 n.24 (1985) (Marshall, J.,
dissenting) (“The ‘political powerlessness’ of a group may be relevant, . . . but that
factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the
example of minors illustrates.” (internal citation omitted)).
Turning to Section 16(b)’s effect on the right to work, Plaintiffs broadly
reason that deprivation of such right denies a person the protection afforded to
those who are permitted to labor and affects an individual’s right to life, liberty,
and property. See Smith v. Texas, 233 U.S. 630, 636 (1914) (“In so far as a man is
deprived of the right to labor, his liberty is restricted, his capacity to earn wages
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and acquire property is lessened, and he is denied the protection which the law
affords those who are permitted to work.”).
Consistent with the Supreme Court’s repeated pronouncements, we agree
with Defendants that classifications based on age are examined under the rational
basis standard, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000); Gregory,
501 U.S. at 470; Vance v. Bradley, 440 U.S. 93, 96-97 (1979); Murgia, 427 U.S. at
313-14, and also that legislation restricting available employment opportunities
does not burden a fundamental right, see Murgia, 427 U.S. at 313. Hence, review
of Article V, Section 16(b) for its rational relation to a legitimate governmental
purpose is appropriate.
Applying rational basis review, Defendants centrally assert that the Supreme
Court’s decision in Gregory and that of the Third Circuit in Malmed control,
foreclosing Plaintiffs’ claim. Significantly, in Malmed, the Third Circuit upheld
the Pennsylvania constitutional provision presently challenged as consistent with
the Equal Protection Clause. See Malmed, 621 F.2d at 569. There, the Court cited
reference materials prepared for the delegates to the Pennsylvania Constitutional
Convention of 1967-68, which indicated that the compulsory retirement provision
was purposed to: (1) reduce court congestion by increasing the number of jurists
(i.e., electing new judges while retaining the part-time services of retired judges);
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(2) eliminate the unpleasant task of individually removing aged and disabled
judges; (3) prevent the harm caused by those few judges who become senile; and
(4) accord with the trend of imposing retirement in other public and private
employment. See id. at 568. The Court concluded that the stated aims were
legitimate and rationally related to the mandatory retirement age. See id. at 569.
Notably, the Third Circuit rejected the district court’s characterization of the
constitutional provision as solely based on the inference that judges over 70
cannot satisfactorily perform their judicial duties. See id. at 572. The Court
emphasized that the preparatory committee did not defend the amendment on this
basis and noted that the burden would have been upon the plaintiffs to prove that
the Constitutional Convention had no reasonable basis for accepting the stated
reasons in support of the proposal. See id.
Subsequent to Malmed, the Supreme Court in Gregory upheld a Missouri
constitutional provision requiring judges to retire at age 70 against an equal
protection challenge. See Gregory, 501 U.S. at 473. There, the Court emphasized
that a state’s citizens “have a legitimate, indeed compelling, interest in
maintaining a judiciary fully capable of performing the demanding tasks that
judges must perform,” noting that voluntary retirement, impeachment procedures,
and the election process may not be sufficient to ensure this objective. Id. at 472;
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see id. at 472-73. Significantly, the Court recognized that
[t]he Missouri mandatory retirement provision, like all
legal classifications, is founded on a generalization. It is
far from true that all judges suffer significant
deterioration in performance at age 70. It is probably not
true that most do. It may not be true at all. But a State
“does not violate the Equal Protection Clause merely
because the classifications made by its laws are
imperfect.”
Id. at 473 (quoting Murgia, 427 U.S. at 316) (citation and internal quotation marks
omitted). In addition, the High Court highlighted that the constitutional provision
in issue “reflect[ed] both the considered judgment of the state legislature that
proposed it and that of the citizens . . . who voted for it,” stating that the people’s
action should not be overturned unless irrational. Id. at 471.
As to Plaintiffs’ claim that societal and demographic changes since the
initial adoption of Section 16(b) in 1968 require revisiting the mandatory
retirement age, Defendants maintain that such inquiry is irrelevant and that such a
policy judgement is not within the competency of the courts. See Bradley, 440
U.S. at 112 (in responding to an argument disputing the age at which mandatory
retirement should be set, stating that “it is the very admission that the facts are
arguable that immunizes from constitutional attack the congressional judgment
represented by [the] statute”).
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In response, Plaintiffs pertinently advance that the Supreme Court’s recent
application of the rational basis test in United States v. Windsor, ___ U.S. ___,
133 S.Ct. 2675 (2013), requires that a law’s legitimate purpose be weighed against
its improper purpose and effects. See Pls.’ Opp’n Br. (Doc. 32) at 13 (citing
Windsor, 133 S.Ct. at 2696 (“The federal statute is invalid, for no legitimate
purpose overcomes the purpose and effect to disparage and to injure those whom
the State, by its [relevant] laws, sought to protect in personhood and dignity.”). As
an additional overlay, Plaintiffs assert that the constitutionality of Section 16(b)
must be evaluated in light of present conditions, citing Shelby County v. Holder,
___ U.S. ___, 133 S.Ct. 2612 (2013) (holding, inter alia, that the coverage
formula of Section 4 of the Voting Rights Act, enacted in 1966, is unconstitutional
in light of current conditions).
Proceeding to the merits, Plaintiffs contend that “the passage of time since
[Section 16(b)] first was enacted has eroded any possible justification” for
compulsory retirement, Pls.’ Opp’n Br. (Doc. 32) at 14, raising three central
points. First, they aver that the incidence of cognitive deterioration has decreased
considerably in recent years and observe a “changed societal understanding of the
effects of aging.” Id. at 15. Second, they dispute that compulsory retirement has
operated to increase judicial manpower, arguing that the senior-judge system
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functions to ensure sufficient capacity. Third, Plaintiffs maintain that Section
16(b) is unnecessary in light of existent procedures for the removal of
incapacitated jurists. See PA. CONST. art. V, § 18(d). Given this assessment,
Plaintiffs reason that none of the proffered rationales remain to overcome Section
16(b)’s purpose and effect to denigrate and harm, e.g., by compensating senior
judges less for the same work as their younger counterparts and “stigmatizing
them as a group” by implying that they are incompetent. Pls.’ Opp’n Br. (Doc. 32)
at 16 (citing Windsor, 133 S.Ct. at 2696).
Contrary to Plaintiffs’ interpretation, we do not believe that Windsor called
into question the Supreme Court’s prior decision in Gregory or the Third Circuit’s
in Malmed. Windsor did not, as Plaintiffs claim, utilize a balancing test in its
equal protection inquiry. Rather, in considering the constitutionality of Section 3
of the Defense of Marriage Act (“DOMA”), the Supreme Court determined that no
legitimate purpose supported the statute’s classification based on sexual
orientation, which would vitiate the need for any further review. See Windsor, 133
S.Ct. at 2696 (stating that “no legitimate purpose overcomes the purpose and
effect to disparage and to injure”); see also id. at 2693 (“The avowed purpose [of
DOMA is] to impose a disadvantage, a separate status, and so a stigma upon all
who enter into same-sex marriages made lawful by the unquestioned authority of
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the States.”). While we commend Plaintiffs for their thoughtful and creative
argument, extending Windsor in the fashion they suggest would be improvident.
Additionally, Plaintiffs’ argument based on changed conditions is
unconvincing. As a general matter, it is unclear whether consideration of changed
circumstances is appropriate to an equal protection inquiry. See Murillo v.
Bambrick, 681 F.2d 898, 912 n.27 (3d Cir. 1982) (collecting cases; remarking that
“the Supreme Court appears not to have determined definitively whether changed
conditions are a relevant consideration in equal protection analysis” (citations
omitted)). In all events, we are compelled to note that the provision Plaintiffs seek
to challenge is not merely the result of legislative action, but a state constitutional
provision approved by the voters of the Commonwealth. The distinction is
important. Such provision “reflects both the considered judgment of the state
legislature that proposed it and that of the citizens of [Pennsylvania] who voted for
it.” Gregory, 501 U.S. at 471. Bearing this in mind, consistent with Gregory and
Malmed, we cannot say that requiring retirement at age 70 represents an irrational
means of seeking to ensure a well-functioning state judiciary. Accord Driscoll, 69
A.3d at 211-12.
B.
DUE PROCESS
Turning to the due process issue, Defendants assert that Plaintiffs have no
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constitutionally protected property interest in continued judicial employment. See
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972) (“The
requirements of procedural due process apply only to the deprivation of interests
encompassed by the Fourteenth Amendment's protection of liberty and property.”).
They explain that Plaintiffs would have to demonstrate a “legitimate claim of
entitlement” to continued employment emanating from state law, id. at 577, and
argue that such claim is foreclosed by the express directive of Section 16(b) in
compelling retirement. See Dungan v. Slater, 252 F.3d 670, 676 (3d Cir. 2001)
(affirming the constitutionality of a mandatory retirement provision affecting air
traffic controllers; stating that “[t]here is generally not a property interest in
continued public employment unless a claimant can demonstrate a ‘legitimate
claim of entitlement to it’” (quoting Roth, 408 U.S. at 577)).2 In other words,
Defendants maintain, “the right to hold judicial office, as defined by Pennsylvania
Constitutional Law, specifically excludes a right to continue in office past the
mandatory retirement age.” Defs.’ Br. in Supp. of Mot. to Dismiss (Doc. 25) at 15
(emphasis in original).
2
Defendants also note that Malmed discussed a due process challenge to Article V,
Section 16(b) of the Pennsylvania Constitution in light of the irrebuttable presumption doctrine,
which is applicable to claims based on substantive due process. See Malmed, 621 F.2d at 57378. Here, however, Plaintiffs express their relevant challenge in terms of procedural due process.
See Pls.’ Am. Compl. (Doc. 10) at ¶¶ 74-76.
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Plaintiffs do not offer any relevant argument in their brief in opposition,
therein essentially conceding that judges lack a property interest in continued
judicial employment. See Pls.’ Opp’n Br. (Doc. 32) at 3 n.2 (citing Driscoll, 69
A.3d at 213 (“[J]udges have no property interest conferred by their election or
retention in serving as commissioned jurists past the date set by the Constitution
for their retirement.”)). In the Amended Complaint, however, they centrally assert
that, by operating to require retirement without cause and before the end of an
elected term, Section 16(b) deprives Pennsylvania judges of their property
interests in their judicial positions without due process of law.
We agree with Defendants that a Pennsylvania judge’s property interest in
his or her employment is expressly limited by the condition, embedded in the state
Constitution, the he or she be retired upon reaching 70, precluding any claim
based on procedural due process.
IV.
CONCLUSION
There is at least a superficial irony in having a judge who is appointed for
life under Article III of the United States Constitution rule against his judicial
colleagues on the courts of this Commonwealth who must hang up their robes at
age 70. And we confess that this causes us no small amount of discomfort. But at
the end of the day, it is for the citizens of the Commonwealth and their elected
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representatives to amend and alter the subject provision, not this Court. Indeed,
since the filing of this matter, the Pennsylvania House of Representatives has
passed a joint resolution that would amend Article V, Section 16(b) to reflect a
retirement age of 75 for state jurists, see PA. H.B. 79 (2013), which bill is
currently under consideration in the Senate Judiciary Committee. While we may
personally doubt the continued efficacy of the current mandatory retirement age
and see the joint resolution as a salutary revision of the law, for all of the
foregoing reasons we cannot base our decision on this fact. Perhaps better than
anyone else, the Plaintiffs before us recognize the legal principle of stare decisis,
which directs us in the matter sub judice to but one result.
Accordingly, and for the reasons herein expressed, we will grant
Defendants' Motion to Dismiss in its entirety. An appropriate order shall issue.
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