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Lerner v. Corbett

United States District Court, Third Circuit

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.


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, "justices, 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. 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 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.


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 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).


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.


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 Maimed 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, 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), off'don 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 "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 . ยง 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." Pis.' 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 ...

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