approach violates due process, especially where, as here, "the State has reasonable alternative means of making the crucial determination." Vlandis v. Kline, supra, 412 U.S. at 452, 93 S. Ct. at 2236.
Reasonable alternative means exist in this case. Finding of Fact No. 26 refers to the creation of the Judicial Inquiry and Review Board, pursuant to Article V, Section 18 of the Pennsylvania Constitution. This board is empowered to conduct investigations concerning allegations that a judge is guilty of misconduct or neglect of duty, or that he suffers from a disability which impedes the performance of his judicial functions. Such an investigation may be initiated by the Board on its own, or it may be in response to a complaint filed by any person. Exhibit P-8 sets forth the rules which establish a detailed procedure for a formal hearing where it is warranted. Following such a hearing, the Board can make a recommendation that the judge involved be suspended, removed, disciplined, or compelled to retire. Final authority for taking such action rests with the Supreme Court.
It is clear, therefore, that a procedure for monitoring the competence of judges already exists in Pennsylvania. Indeed, it might fairly be argued that the Inquiry and Review Board, without change, is adequate to serve the state interest of keeping unfit judges off the bench. Certainly, modifications are available which could fill any void left by the removal of the mandatory retirement rule. For example, the state could require that all judges' work be reviewed at a certain age, or a review could take place periodically, without regard to age. It is not within my province to delineate the mechanics of such a system. The important point is that reasonable alternative means exist for controlling the quality of the state's judiciary without imposing an arbitrarily chosen age at which all must retire. At the very least, it is no more difficult to measure the competence of a judge than it is to determine whether a pregnant woman can control a classroom, or whether an unmarried man can raise a child. See LaFleur; Stanley, supra.
In addition to the need for maintaining judicial competence, the state offers several lesser justifications for the mandatory retirement rule. First, the Commonwealth submits that the present system serves the purpose of "updating the judiciary by infusion of "new blood' knowledgable in modern trends in the law." The defendants have offered no evidence, however, to show that elderly judges are any less cognizant of modern legal trends than their younger counterparts. In fact, quite the opposite may be true. The record contains numerous references to the benefits which the judicial system derives from the wisdom and experience of former and retired judges who serve as senior judges. See, e.g., Statement of Chief Justice Eagen Relative to Amendment of Pa.R.J.A. 701(a), October 5, 1977; see also Exhibit P-6. Absent persuasive supporting evidence, an intrusion on constitutional rights cannot be justified by the proposition that new blood is better than old blood.
The state further submits that the present system of mandatory retirement provides opportunities for elevation to the bench; avoids the difficulty of determining an individual judge's competence; and provides certain notice of upcoming judicial vacancies. While each of these purposes may be arguably legitimate, they are all matters of mere administrative convenience. Each can be amply served by other measures which do not infringe on constitutionally protected rights. "(Administrative) convenience alone is insufficient to make valid what otherwise is a violation of due process of law." LaFleur, supra, 414 U.S. at 647, 94 S. Ct. at 799.
I am persuaded, therefore, that the irrebuttable presumption created by Pennsylvania's mandatory retirement rule violates the due process clause because it is untrue in most, if not all, cases, and because reasonable alternative means exist by which the state can accomplish the rule's intended purposes.
In addition to LaFleur, Vlandis, and Stanley, supra, there are other cases which support this conclusion. Most significant among these is Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir. 1977). The Gurmankin plaintiff was a blind woman who was denied the right to take a teacher's examination. Following LaFleur, the Third Circuit found that due process had been violated by the irrebuttable presumption that blind persons are incompetent to teach sighted students. Here also, the constitutional challenge was not to the requirement that teachers be competent to teach, but only to the denial of an opportunity for plaintiff to demonstrate her competence. 556 F.2d at 187, and n. 5.
Also persuasive is the recent decision of my learned colleague, Judge Cahn, in Davis v. Bucher, 451 F. Supp. 791 (E.D.Pa.1978). There, the irrebuttable presumption that persons with a history of narcotics abuse were incompetent to engage in public employment was held violative of the due process clause. Once again, the Constitution was interpreted to require individual determinations of competence. In so holding, Judge Cahn noted that the plaintiffs before him were only Applying for work, thereby placing them in a somewhat less tenable position than the LaFleur plaintiffs, who sought to protect their rights to present employment. Mindful of this distinction, the court refrained from holding that the plaintiffs were entitled to a full hearing on all job qualifications. Nevertheless, "if the City establishes a policy which is as facially arbitrary as the one in the case at bar and seeks to apply it in a conclusive manner, then plaintiffs should, at a minimum, be given an opportunity to demonstrate that the policy is inappropriate in their case." 451 F. Supp. at 800.
Despite the clear teachings of these cases, however, the defendants contend that the analysis expressed at length above is not a proper ground for decision. They argue that however compelling the irrebuttable presumption doctrine may once have been, it is no longer applicable in this, or any other, case.
To follow the course of defendants' reasoning, we must begin with the decision of the Court of Appeals for the Seventh Circuit in Trafelet v. Thompson, 594 F.2d 623 (7th Cir. 1979), cert. denied, 444 U.S. 906, 100 S. Ct. 219, 62 L. Ed. 2d 142 (1979). There, a due process challenge was raised to an Illinois statute requiring retirement of state court judges at age 70, thus presenting a controversy which is materially indistinguishable from the present case. Finding no constitutional violation, the Seventh Circuit rejected a due process argument which was grounded firmly on the irrebuttable presumption doctrine. Clearly, if I chose to follow it, the Trafelet opinion would be fatal to the cause of action in the present case. Nevertheless, for several reasons, I find the Seventh Circuit's decision to be unpersuasive.
In rejecting the irrebuttable presumption approach, the Trafelet court relied heavily on an earlier decision of the Seventh Circuit, Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977), aff'd by an equally divided court, 434 U.S. 356, 98 S. Ct. 786, 54 L. Ed. 2d 603 (1978), where "we expressed our uncertainty concerning the scope and continuing force of the doctrine of irrebuttable presumptions." Trafelet, 594 F.2d at 629. Evidently, this "uncertainty" is based on the failure of the Supreme Court to rely upon or even mention the irrebuttable presumption doctrine in the recent decisions of Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976), and Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979). These decisions held, respectively, that the equal protection clause was not violated by mandatory retirement rules affecting state police officers and foreign service officials.
For reasons explained later in this opinion, I find that Murgia and Vance are wholly distinguishable from the equal protection claim now before me. As far as due process is concerned, the fact is that these cases simply do not address the issue.
The irrebuttable presumption analysis is a doctrine of constitutional law developed in a due process context. It has been endorsed and relied upon by the Supreme Court in at least three major decisions within the past seven years. See LaFleur, Vlandis, Stanley, supra. It is inconceivable to me that such a doctrine could be somehow negated or overruled by default simply because the Supreme Court has not availed itself of several alleged opportunities to discuss it. From the language and analysis used in the majority opinions, it is clear to me that Murgia and Vance were decided strictly in an equal protection context.
They should not, therefore, be read as impliedly overruling a doctrine developed within the scope of due process.
Apparently, the Trafelet court was not concerned with the fact that the constitutional analysis in Murgia and Vance was limited to equal protection. The court relied here on the Second Circuit's opinion in Palmer v. Ticcione, 576 F.2d 459 (2d Cir. 1978), cert. denied, 440 U.S. 945, 99 S. Ct. 1421, 59 L. Ed. 2d 633 (1979), which suggests the theory that the irrebuttable presumption doctrine, though born in the realm of due process, was later absorbed into equal protection law, where it died a silent death. Thus, it is said that "where "the statutory classification is sustainable as rationally based, then it should not fall because it might also be labelled a presumption.' " Trafelet, supra, 594 F.2d at 630, quoting Palmer, supra, 576 F.2d at 463. In my view, this approach ignores the clear command of LaFleur, Vlandis, and Stanley. In each of those cases, the statutory classification involved might well have been "sustainable as rationally based." In LaFleur, the Supreme Court stated plainly that the "mandatory termination . . . rules surely operate to insulate the classroom from the presence of potentially incapacitated pregnant teachers." 414 U.S. at 644, 94 S. Ct. at 798. Similarly in Stanley, the Court was willing to concede Arguendo that "most unmarried fathers are unsuitable and neglectful parents," thereby providing a clearly rational basis for the rule in question. Nevertheless, where the rules were not universally applicable, and where a reasonable alternative means existed for making the necessary determination, the statutory classification in each of those cases fell, precisely because it could be "labelled a presumption."
For these reasons, I reject the defendants' argument that the irrebuttable presumption doctrine is no longer viable. I think it highly improper to hold that a well-established doctrine of due process law has been overruled simply because the Supreme Court failed to mention it in opinions which speak only to the principles of equal protection.
Rather, I conclude that absent a clear expression to the contrary, the LaFleur, Vlandis, and Stanley opinions are still controlling. Therefore, I must apply the irrebuttable presumption doctrine when it is urged upon me in an appropriate case. The doctrine's appropriateness in this case is abundantly clear.
II. EQUAL PROTECTION
In Part I of this opinion, I have held that the Pennsylvania rule mandating the retirement of judges at age 70 is unconstitutional because it violates the plaintiffs' right to due process of law. This holding is a sufficient ground, by itself, upon which to decide this case and enjoin the enforcement of Article V, Section 16(b). See Gurmankin v. Costanzo, supra, 556 F.2d at 188. Nevertheless, the parties have vigorously contested the equal protection aspects of the case, and it is appropriate to discuss these issues as well.
At the outset, it is clear that the right allegedly infringed in this case, i. e., the right to public employment, is not a fundamental right. Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). Similarly, the plaintiffs do not qualify as a suspect class. See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973). "Strict judicial scrutiny" is therefore inappropriate in this case, and the correct test for deciding the equal protection questions before me is the rational basis standard. Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 312-14, 96 S. Ct. at 2566-67. In applying this test, I am mindful that "(this) inquiry employs a relatively relaxed standard" and that "(perfection) in making the necessary classification is neither possible nor necessary." Id. at 314, 96 S. Ct. at 2567. On the contrary, to survive the rational basis challenge, the rule need only be "rationally related to furthering a legitimate state interest." Id., at 312, 96 S. Ct. at 2566.
Defendants argue that the mandatory retirement of judges rule satisfies the above mentioned standard because it is rationally related to the purpose of keeping unfit judges off the bench. This is, of course, a perfectly legitimate state purpose. The question is whether the challenged rule bears a rational relationship to that purpose.
It is clear that the concept of mandatory retirement at a specified age does not, by itself, violate equal protection. There are many decisions upholding mandatory retirement systems, and defendants rely on these to support their argument. This line of decisions is led by Massachusetts Board of Retirement v. Murgia, supra, and Vance v. Bradley, supra. In both cases, the Supreme Court upheld the mandatory retirement of certain public employees. Despite defendants' urgings, however, I find that these cases do not control the present controversy.
In Murgia, the Court considered an equal protection challenge to a Massachusetts law requiring uniformed state police officers to retire at age 50. The evidence showed that the physical demands of the job were considerable and that the risk of physical failure clearly increased with age. The district court in Murgia found that the rule violated equal protection because no basis had been shown for setting the cutoff at age 50. The Supreme Court reversed, since, however arbitrary a particular age might be, it was clear that a relationship had been shown between advancing age and a diminution of the physical abilities required to perform the officer's job. A rule that removed all at a fixed age, therefore, at the very least, had a rational basis. 427 U.S. at 315, 96 S. Ct. at 2568.
A very different set of facts emerges from the evidence in this case. Here, the record contains no proof of a relationship between advancing age and ability to perform the duties of a judge. On the contrary, the evidence before me belies the existence of any such relationship.
We are not concerned in this case with an occupation that requires sustained physical ability or stamina, such as that of a uniformed police officer. Rather, we are dealing with judges, a most unique and select class of individuals. The evidence before me showed that it is a serious mistake to consider the population as a whole when determining an age at which physical and mental abilities begin to deteriorate. On the contrary, the plaintiffs' expert testified, without contradiction, that persons, such as judges, who have advanced education and who have succeeded in reaching the upper levels of their profession are likely to survive and retain their abilities for a substantially longer period of time than the population at large. N.T. 45-46. This, of course, is fully consistent with the fact that 47 persons over age 70 are presently serving as senior judges in Pennsylvania, rendering significant service to the Commonwealth. It will be remembered, too, that, without exception, every judge over 70 who requested assignment was readily accepted by the state.
The point is that this record provides no support at all for a connection between advanced age and inability to perform the duties of a judge, thereby rendering this case wholly distinguishable from Murgia.
I am aware that it would be erroneous to place an affirmative burden on the defendants to come forward with "empirical proof" of a decline in ability to perform judicial duties with advancing age. Vance v. Bradley, supra, 440 U.S. 110, 99 S. Ct. 950. Rather, it is plaintiffs' duty to "convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Id. at 111, 99 S. Ct. at 950. In my view, plaintiffs have met this heavy burden.
My conclusion here is based on more than the evidence that those at the top of their professions do not of necessity lose their abilities as the years pass. More compelling is the state's own conduct, which indicates clearly that the "governmental decision-maker" did not and does not believe in the existence of any relationship between advanced age and judicial incompetence.
We have already seen that the state has assigned senior judge duties to every judge who has asked for them. Moreover, we have seen that the senior judges carry heavy workloads, and have become essential to the continued health of the Pennsylvania judicial system. What we have not examined until now is the method by which the senior judges are compensated. Findings of Fact 74 to 77 set forth the striking differences between the compensation of senior judges and that of their "active" colleagues.
Active judges receive an annual salary of $ 48,000. Senior judges are paid on a per diem basis. They receive $ 125. per day, which would amount at most to $ 32,500 per year. Active judges are paid regardless of whether they are on the bench, in their chambers, sick at home, or away on vacation. Senior judges, by contrast, are paid only for days worked, which is strictly limited to time spent on the bench. It does Not include sick days or vacation periods of any kind. More surprisingly, it also does not include time spent in chambers writing opinions, conducting conferences, or tending to correspondence. While any trial judge knows that these are all necessary adjuncts of conducting trials, they are, nevertheless, not compensable labor for senior judges. Perhaps most remarkable of all is the fact that some senior judges actually render service without Any compensation because the legislature limits the amount which can be spent for senior judge salaries each year. When this money is exhausted, senior judges work without pay.
While considering this system of compensation, it is to be kept in mind that the state has not as yet turned down an application for senior judge duties, and relies on senior judges as an essential part of its court system. It becomes readily apparent that this system is not in any way related to the removal of unfit judges from the bench. The fact is that the present system does not mandate retirement from the Bench at all. Rather, it simply mandates retirement from full salary. Removal from the bench has been for all practical purposes, a voluntary matter.
Neither Murgia nor Vance involved situations where employees were forced to retire, allegedly because they were too old to do their jobs, only to be allowed back into doing precisely what they had done before, albeit for a considerably reduced salary. In both of those cases, there was a clear basis for believing that employees would lose their ability to perform their jobs effectively as they reached advanced ages. Here, by contrast, the state's own conduct shows not only that no such basis exists, but also that the state never truly believed in its existence. The state encourages judges to work past 70, has never turned down a request for post-70 judicial duties, and even relies on the work of judges over 70 to keep its court system operating effectively. Nevertheless, it chooses to pay these judges at a significantly reduced rate, for no apparent reason other than age. In short, the mandatory retirement system is merely a thinly veiled scheme for acquiring cheap judicial labor. In practical application, the system bears no rational relationship to the state's purpose of removing unfit judges. I conclude, therefore, that this system violates plaintiffs' right to equal protection of the laws.
For the reasons expressed at length above, I hold that the first sentence of Article V, Section 16(b) of the Pennsylvania Constitution insofar as it deals with Common Pleas judges is in conflict with the Constitution of the United States.
The enforcement of this provision as well as all of its enabling statutes, must be permanently enjoined.
CONCLUSIONS OF LAW
1. This court has jurisdiction of the parties and the subject matter of the present action. 28 U.S.C. §§ 1331, 1343(3) and (4). This is an appropriate action for declaratory relief. 28 U.S.C. §§ 2201-02.
2. The first sentence of Article V, Section 16(b) of the Pennsylvania Constitution violates the plaintiffs' right to due process of law under the Constitution of the United States because it creates an impermissible irrebuttable presumption.
3. This provision also violates the plaintiffs' right to equal protection of the laws under the Constitution of the United States because it is not rationally related to any legitimate state purpose.
4. Defendants must therefore be enjoined from enforcing the first sentence of Article V, Section 16(b) of the Pennsylvania Constitution as to any judge of the Court of Common Pleas.
AND NOW, this 21st day of September, 1979, for the reasons expressed in the foregoing adjudication, the defendants are hereby enjoined from enforcing the first sentence of Article V, Section 16(b) of the Pennsylvania Constitution and all of its enabling statutes as to any judge of the Court of Common Pleas.