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Malmed v. Thornburgh


decided: May 13, 1980.



Before Aldisert, Weis and Garth, Circuit Judges.

Author: Aldisert


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.


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."*fn1 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 withdrawal of retirement. Others are not financially independent, and may find retirement and disability pensions inadequate.*fn2

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 back-log."*fn3 Noting that "(a)bout one-half of the states require judges to retire at a fixed age, with seventy years being the most common,"*fn4 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.*fn5

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.*fn6 Moreover, the Pennsylvania Bar Association had advocated mandatory retirement for Pennsylvania trial judges at an age not younger than seventy.*fn7 The National Municipal League had made a similar recommendation in its model state constitution.*fn8

The parties have stipulated that the Judiciary Subcommittee of the Preparatory Committee drafted what subsequently became Article V of the Pennsylvania Constitution when ratified by popular vote on April 23, 1968.*fn9 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.*fn10 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). The legitimate purpose justifying the provision need not be the primary purpose of the provision. McGinnis v. Royster, 410 U.S. 263, 276, 93 S. Ct. 1055, 1062, 35 L. Ed. 2d 282 (1973). Although our examination would not necessarily be limited to the purposes explicitly stated in the documents of the Judiciary Subcommittee, we conclude that the objectives therein are sufficient to uphold § 16(b) under both the equal protection and due process clauses.


The district court concluded that Article V, § 16(b) violates the equal protection clause of the fourteenth amendment to the United States Constitution because it deprives appellees of their employment solely because they are seventy years old, thereby discriminating against them on the basis of age. By treating appellees differently than younger judges, the court held that the provision implicates the equal protection clause. Absent a rational relationship to a legitimate state objective the provision offends the equal protection clause. Before examining the court's equal protection analysis, we must consider the relevant teachings of the Supreme Court.


Of the many equal protection decisions announced by the Supreme Court in recent years, two are particularly applicable. Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (per curiam). In Murgia, the Court rejected a challenge to a Massachusetts statute mandating retirement of uniformed state patrolmen at age fifty. The district court had held that the compulsory retirement requirement was not rationally related to the legislative objective of assuring physical ability of active officers. In reversing, the Court agreed with the district court that the rational basis standard of review was applicable, noting that the challenged statute affected neither a fundamental right nor a suspect class. 427 U.S. at 312-14, 96 S. Ct. at 2566-67. It disagreed with the district court's conclusion that the retirement statute failed to meet that standard, however, holding that "mandatory retirement at 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age." Id. at 315, 96 S. Ct. at 2568. The record contained evidence of the negative relationship between aging and the ability to perform police duties. Significantly, however, the Court justified its conclusion by placing the burden of persuasion on the police officers: "There is no indication that § 26(3)(a) has the effect of excluding from service so few officers who are in fact unqualified as to render age 50 a criterion wholly unrelated to the objective of the statute." Id. at 315-16, 96 S. Ct. at 2568 (footnote omitted). Thus, although the relationship between aging and diminished ability to perform was not invariable, the patrolmen attacking the statute had failed to demonstrate that the relationship on which the statute was undeniably based was actually unfounded in a significant number of cases.

The Court has recently examined a compulsory retirement statute in Vance v. Bradley. The Court rejected an equal protection attack on a federal statute requiring retirement at age sixty by employees covered by the foreign service retirement system, even though another statute allowed civil service personnel to work until age seventy.*fn11 The Court again noted the absence of a fundamental interest or a suspect class, and applied the rational basis standard. 440 U.S. at 97, 99 S. Ct. at 943. In concluding that the statutory schema serves a rational basis, the Court reasoned that the mandatory retirement age of sixty attempts to "stimulat(e) the highest performance in the ranks of the Foreign Service by assuring that opportunities for promotion would be available despite limits on the number of personnel classes and on the number of positions in the Service." Id. at 101, 99 S. Ct. at 945. It concluded that the mandatory retirement provision is not invalid because it is rationally related to the goal of high performance. Id. at 102, 99 S. Ct. at 946.

This case also must be examined under the rational basis test. As the Court noted in Murgia, a class of persons composed of the elderly is not a suspect class. 427 U.S. at 313, 96 S. Ct. at 2566. Nor is the interest of appellees in public employment a fundamental interest. Id. Therefore, the standard by which we must review this provision of the Pennsylvania Constitution is the one employed in Vance v. Bradley :

The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Thus, we will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational.

440 U.S. at 97, 99 S. Ct. at 943 (footnote omitted). Having thus ascertained the proper standard for reviewing Article V, § 16(b), we must now examine the district court's reasons for holding it violative of the equal protection clause.


In its discussion of the equal protection contention, the district court properly acknowledged that "strict judicial scrutiny" is an inappropriate test in this context and that the proper scope of review is the "relatively relaxed" rational basis standard employed in Murgia. Even though it accepted the rational basis test, however, the district court concluded that no rational basis exists for the state constitutional provision. The court's analysis took as its major premise that the only basis for the state provision is its assumption that judges who are over seventy are unable to perform satisfactorily. 478 F. Supp. at 1008. Thus, the district court stated that "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." Id. at 1014. Proceeding on this extremely limited view of the purpose of § 16(b), the court reached two intermediate conclusions to justify its ultimate determination of unconstitutionality. First, it concluded that the plaintiffs had met their burden of showing that judges who are aged seventy are not senile and are capable of performing their work. In the court's words, " "the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.' " Id. at 1014 (quoting Vance v. Bradley, 440 U.S. at 111, 99 S. Ct. at 950).*fn12 Second, the court cited the provisions allowing judges over age seventy to perform as "senior judges" as sufficient proof that the state does not actually perceive any relationship between advanced age and judicial incompetence. 478 F. Supp. at 1014.*fn13


Sound formal logic unquestionably inheres in the district court's analysis. The conclusion unerringly flows from its premises. But the court erred in choosing as its major premise that the basis of § 16(b) is the inability of judges over the age of seventy to perform their judicial duties. Its subsequent analysis falters because the assumed basis for the constitutional convention's action misses by a wide mark the reasons set forth in the report of the Judiciary Subcommittee.

Moreover, by insisting that the appellants assume the burden of proving a rational relationship between the statute and a legitimate legislative goal, 478 F. Supp. at 1014, the district judge failed to heed the precise teachings of Vance v. Bradley :

In ordinary civil litigation, the question frequently is which party has shown that a disputed historical fact is more likely than not to be true. In an equal protection case of this type, however, those challenging the legislative judgment must 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 (citations omitted). As we have said in a slightly different context:

"The District Court's responsibility for making "findings of fact' certainly does not authorize it to resolve conflicts in the evidence against the legislature's conclusion or even to reject the legislative judgment on the basis that without convincing statistics in the record to support it, the legislative viewpoint constitutes nothing more than what the District Court in this case said was "pure speculation.' "

440 U.S. at 110-11, 99 S. Ct. at 950 (quoting Brotherhood of Locomotive Firemen & Enginemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 138-39, 89 S. Ct. 323, 328, 21 L. Ed. 2d 289 (1968)). See also Murgia, 427 U.S. at 315-16, 96 S. Ct. at 2568.

In sum, the district court erroneously placed a burden on the appellants to rebut a limited argument presented by the appellees. The correct approach would have been to require the appellees to prove that the Pennsylvania Constitutional Convention had no reasonable basis for believing the four reasons stated for the adoption of the mandatory retirement provision. See Vance v. Bradley, 440 U.S. at 112, 99 S. Ct. at 951. We conclude that the purposes actually given for the provision are legitimate and do have a rational relationship to the mandatory retirement age.

Reference Manual No. 5 listed four separate reasons in support of the provision, not one of which corresponds to the reason accepted by the district court as its major premise. First, by utilizing senior judges in part-time post-retirement service, the mandatory retirement plan substantially increases judicial manpower by bringing in younger judges while retaining the part-time services of willing and able retired judges. The legislative interest in reducing court congestion is certainly a legitimate state interest. See Administrative Office of Pennsylvania Courts, 1978 Annual Report 26, 27, 32. Even the district court's findings of fact demonstrate that retired judges have contributed significantly to the administration of justice in Pennsylvania. See note 13 supra. The conclusion is therefore inescapable that the constitutional provision is rationally related to the legitimate state interest specified in Reference Manual No. 5.

The second reason, that mandatory retirement eliminates the unpleasantness of selectively removing aged and disabled judges, and the third reason, that prevention of harm by a few senile judges more than offsets loss of judges who retain full powers past normal age, may be considered together. We cannot say that it would be irrational for Pennsylvania to be concerned with senility among state judges. Removal of individual judges for any reason has proved exceptional. During the ten year period from 1969 through 1978, only one common pleas court judge was removed from office for any reason. Even if the removal process were largely effective, the constitutional convention could have rationally agreed that "one bad Judge can undo the efforts of a hundred excellent Judges," see note 7 supra, and then concluded from this premise that mandatory retirement would both remove the senile and place a limit on the tenure of judges afflicted with other types of incompetence. In addition, the convention could rationally place a premium on avoiding the unpleasantness and public humiliation associated with individual removal. See Reference Manual No. 5, supra note 1, at 203-04.

Fourth, the provision conforms to the recommendations of the American Bar Association, the Pennsylvania Bar Association, and the National League of Cities, and corresponds with the current trend toward mandatory retirement at seventy in other public and private employment. If uniformed state patrol officers, see Murgia, 427 U.S. at 315, 96 S. Ct. at 2567, and foreign service personnel, see Vance v. Bradley, 440 U.S. at 101, 99 S. Ct. at 945, can be subjected to mandatory retirement, we have little difficulty sustaining as rational a retirement provision applicable to state judges. Indeed, in trying to conform the age for retirement of judges with the age for retirement of other state personnel, the convention could have placed heavy emphasis on treating individuals of the same age in a similar manner.

It bears repetition that the convention's judiciary committee did not defend the amendment on the basis accepted by the district court, that judges over seventy are unable to perform judicial duties satisfactorily. We therefore determine the district court's analysis to be deficient because it rests on a fundamental mischaracterization of the purpose of § 16(b). Pennsylvania has attached special importance to increasing judicial manpower, to eliminating the unpleasantness of removing senile judges on an individual basis, to preventing the harm to litigants and to the entire judicial system caused by a few senile judges, and to conforming with a trend toward mandatory retirement in other private and public employments, and we believe its assessment is rational. "Whether or not individual judges may agree with this assessment, it is not for the courts to reject it." Vance v. Bradley, 440 U.S. at 106, 99 S. Ct. at 948.

As a federal court reviewing a state constitutional provision under the equal protection clause, we may not demand perfection. Phillips Chemical Co. v. Dumas Independent School Dist., 361 U.S. 376, 385, 80 S. Ct. 474, 480, 4 L. Ed. 2d 384 (1960), or "mathematical nicety," Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 1161, 25 L. Ed. 2d 491 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340, 55 L. Ed. 369 (1911)). All we can do is determine whether the provision is rationally related to achieving a legitimate state objective. Vance v. Bradley, 440 U.S. at 97, 99 S. Ct. at 943. Appellees' case condenses to their argument that judges over seventy are as reliable as judges under seventy. But the truth of this proposition does not establish a denial of equal protection. So long as a rational basis can be identified, and we can identify several here, our task is at an end. We conclude that Article V, § 16(b) does not violate the equal protection clause.*fn14


But the bulk of the district court's analysis was its acceptance of the appellees' theory that § 16(b) violates the due process clause. The court struck down the provision under a concept of substantive due process, described in some Supreme Court decisions in the early seventies as "the irrebuttable presumption doctrine." This conceptual framework requires careful analysis for proper application, as is now clear from Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975), and Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir. 1977).


Of uneasy definition and uncertain status, the doctrine emanates from a series of Supreme Court decisions from 1971 to 1974. Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973); United States Department of Agriculture v. Murry, 413 U.S. 508, 93 S. Ct. 2832, 37 L. Ed. 2d 767 (1973); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974). Each of these cases involved a statute containing rules that denied a benefit or placed a burden on all individuals possessing a certain characteristic. The characteristic is the basic fact from which a presumed fact is inferred. These decisions held that if it "is not necessarily or universally true in fact" that the basic fact implies the presumed fact, Vlandis v. Kline, 412 U.S. at 452, 93 S. Ct. at 2236, then the statute's irrebuttable presumption denies due process of law.*fn15 Its very name suggests an analysis grounded on formal logic, and a careful examination of the Supreme Court decisions that have applied it supports the conclusion that the doctrine is but another way of stating that a presumed fact must be based on reason, and that if a plaintiff demonstrates that the inference is not "rationally related" to a legitimate legislative classification, the inference will not pass constitutional muster. The decisions also suggest that in appropriate cases the classification must serve a compelling state interest.

The five Supreme Court decisions that have employed the irrebuttable presumption analysis can be divided into two categories. The first category includes Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971), Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973), and United States Department of Agriculture v. Murry, 413 U.S. 508, 93 S. Ct. 2832, 37 L. Ed. 2d 767 (1973), each of which invalidated a classification adopted as an administrative device to serve as evidence of another classification. In Bell, the Court examined a Georgia procedure that mandated revocation of a driver's license if he had no liability insurance, was involved in an accident, and failed to post cash or bond in the amount of a claimant's alleged damages. In holding that the procedure violated the due process clause, the Court noted that before the driver could actually be held liable for the claimant's injuries, he would have to be adjudged negligent in the Georgia courts. But by revoking his license prior to this finding of negligence, the procedure "adjudicates important interests of the licensees." 402 U.S. at 539, 91 S. Ct. at 1589. Failure to accord an opportunity to rebut the presumption of fault thus violated the due process clause. By applying a general presumption that uninsured drivers who are involved in accidents will be held liable for those accidents, the procedure classified an individual driver as negligent even when "there is no reasonable possibility of a judgment being rendered against the licensee . . . ." Id. at 540, 91 S. Ct. at 1590 (emphasis added). The Court implicitly determined that the procedure lacked a rational relationship to the designated objective.

In Vlandis, the Court examined a Connecticut statutory presumption that all out of state applicants to state colleges were nonresidents for purposes of calculating tuition and would remain nonresidents for as long as they were students in Connecticut. The ultimate issue to be determined for each student was his or her residence, but the statute authorized a short-cut to this determination without providing the students an opportunity to controvert the conclusion. 412 U.S. at 445-46, 93 S. Ct. at 2233. Once again, the procedure attempted to reach conclusions about an individual's status by examining a particular set of circumstances that bore no necessary relationship to the classification. The Court concluded that "(t)he State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates." Id. at 453-54, 93 S. Ct. at 2237 (emphasis added). As we read Vlandis, the Court's decision rests on its determination that the presumption of nonresidence was not rationally related to the state's objective.

In Murry, the Court held invalid a regulation that denied food stamps to any household consisting of one or more persons over eighteen years of age who had been claimed as a dependent on a federal income tax return filed within the preceding two years by taxpayers who were themselves ineligible to receive food stamps. The legislative history of the provision indicated a congressional concern that nonneedy households were participating in the food stamp program. 413 U.S. at 512-13, 93 S. Ct. at 2835. The Court determined that the provision had no relation to the actual need of the persons affected, id. at 513, 93 S. Ct. at 2835, and concluded that "the deduction taken for the benefit of the parent in the prior year is not a rational measure of the need of a different household with which the child of the tax-deducting parent lives . . . ." Id. at 514, 93 S. Ct. at 2836 (emphasis added). Once again, the Court used the rational basis analysis.

Bell, Vlandis, and Murry should not be expanded beyond their context. They involved administrative short-cuts by which individuals were determined to be ineligible for benefits. The ultimate criteria for eligibility were unchallenged in all three cases; the challenges were to the use of proxies to prove the ultimate criterion. In each case, the Court struck down the procedure because the proxy was not reasonably related to the ultimate criterion. As noted earlier, the Pennsylvania constitutional provision at issue in this case attempts to serve four specific interests of the system, with the qualifications of each individual judge being unrelated to those interests. The provision does not use age seventy to reach a conclusion about individual judges. It uses that age to further important system-wide objectives. When a judge reaches age seventy, important interests of the system demand that even competent judges retire. Therefore, Bell, Vlandis, and Murry are not controlling here. See Weinberger v. Salfi, 422 U.S. at 771-72, 95 S. Ct. at 2470.

The second category contains Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), and Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974). In both cases, the Court noted that the procedures implicated fundamental interests of the affected individuals. In Stanley, an unwed father sought to obtain custody of his children after their mother died. The statutory definition of "parent" applicable to custody disputes excluded natural fathers of illegitimate children, thus precluding Stanley, who had never been judged unfit to have custody, from obtaining custody. In striking the procedure, the majority recognized that "(the) Court has frequently emphasized the importance of the family." 405 U.S. at 651, 92 S. Ct. at 1212. Similarly, in LaFleur, the Court struck down regulations requiring mandatory maternity leave for school teachers. Again noting that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment," 414 U.S. at 639-40, 94 S. Ct. at 796 (citations omitted), the Court concluded that the overly restrictive maternity leave regulations "can constitute a heavy burden on the exercise of these protected freedoms," id. at 640, 94 S. Ct. at 796, for which the state could advance no justification. See also Turner v. Department of Employment Security, 423 U.S. 44, 96 S. Ct. 249, 46 L. Ed. 2d 181 (1975) (per curiam). Even assuming that the Court's analysis in Stanley and LeFleur employed "strict scrutiny" rather than the rational basis standard, the existence of fundamental interests in those decisions distinguish them from this case.

We affirmed a district court order that employed the irrebuttable presumption analysis in Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir. 1977). We relied on LaFleur in holding that a blind teacher was entitled to demonstrate her competence to teach an English course in the Philadelphia public schools. Although no fundamental interest or suspect class was implicated in Gurmankin, the court reasoned that the school district's policy of using blindness as an indication of competence violated due process by not allowing Gurmankin to demonstrate that she was actually competent. Id. at 187. In effect, the policy was not rationally related to the legitimate state goal of assuring teacher competence. "The very point of this case is that (by) denying Gurmankin the opportunity to take a qualifying exam, the defendants deprived her of the opportunity to present evidence of her qualifications." Id. at 187 n.5. Absent the fundamental interest involved in LaFleur, however, Gurmankin is more akin to the first category of irrebuttable presumption decisions, and should not control here because the qualifications of the judges are not at issue under § 16(b).

As with any aspect of substantive due process, a court using the irrebuttable presumption doctrine must apply the rational basis test, or in appropriate cases, strict scrutiny. Otherwise, the courts would be resorting to blatant "Lochnerism," see Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), a concept that has been administered suitable last rites and mercifully interred. See North Dakota State Board of Pharmacy Snyder's Drug Stores, Inc., 414 U.S. 156, 164-67, 94 S. Ct. 407, 412-14, 38 L. Ed. 2d 379 (1973); Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 536, 69 S. Ct. 251, 257, 93 L. Ed. 212 (1949).*fn16

Thus, we do not read the irrebuttable presumption decisions as deviating substantially from the traditional tests for violations of the due process clause. Because no suspect class or fundamental interest is implicated in this case, we must apply the standard as explained in Weinberger v. Salfi, 422 U.S. at 777, 95 S. Ct. at 2472-2473:

(T)he question raised is not whether a statutory provision precisely filters out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute. Such a rule would ban all prophylactic provisions, and would be directly contrary to our holding in Mourning (v. Family Publications Service, Inc., 411 U.S. 356, 93 S. Ct. 1652, 36 L. Ed. 2d 318 (1973)). Nor is the question whether the provision filters out a substantial part of the class which caused congressional concern, or whether it filters out more members of the class than nonmembers. The question is whether Congress, its concern having been reasonably aroused by the possibility of an abuse which it legitimately desired to avoid, could rationally have concluded both that a particular limitation or qualification would protect against its occurrence, and that the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule.

See also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 23-24, 96 S. Ct. 2882, 2896, 49 L. Ed. 2d 752 (1976); Marshall v. United States, 414 U.S. 417, 427-28, 94 S. Ct. 700, 707, 38 L. Ed. 2d 618 (1974); Flemming v. Nestor, 363 U.S. 603, 611, 80 S. Ct. 1367, 1372, 4 L. Ed. 2d 1435 (1960).*fn17 We must determine whether the Commonwealth of Pennsylvania could have rationally concluded that a mandatory retirement age of seventy for its judges would promote the policies specified in the legislative history of Article V, § 16(b).*fn18


In applying the irrebuttable presumption doctrine to this case the district court assumed erroneously that the major, if not the only, justification for § 16(b) is the determination that judges over age seventy are unfit to judge. It then reasoned that because this presumed fact is not necessarily true, the provision offends the due process clause. The district court's logic is again unassailable, but its understanding of the constitutional convention's reasons for § 16(b) is imperfect. This error results in no small measure from the failure of appellants to defend properly, before this court and the trial court, the action of Pennsylvania's Constitutional Convention. This failure is evident from the district court's discussion of what it described as "several lesser justifications (advanced by appellants) 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' knowledgeable 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.

478 F. Supp. at 1010. Although appellants repeat these and similar arguments before us, fortified with citations of case law, see Brief for Appellants at 17, these arguments miss the important issue in this case: Is the mandatory retirement age rationally related to the accomplishment of any legitimate state objective?


The basic error committed by the district court in its due process discussion was the same one committed in its equal protection discussion; it proceeded on the premise that "(t)he principal justification advanced by the Commonwealth for this rule is "the removal of unfit judges from the bench by means of mandatory retirement at age seventy'." 478 F. Supp. at 1008. We have previously demonstrated in Part II, supra, that the premise on which the court relied is invalid.

In reviewing § 16(b) under the due process clause, we must examine all legitimate objectives that the commonwealth could have considered to determine if any of them are rationally served by the provision. The district court's analysis of but one of the objectives, without considering the objectives explicitly stated in the reports of the drafters, does not comply with this precept. We have examined the provision in light of the four purposes contained in the Committee Report, and for the reasons detailed in Part II, supra, we conclude that § 16(b) is rationally related to legitimate legislative objectives.*fn19


Accordingly, we will reverse the judgment of the district court and remand these proceedings with a direction to enter judgment in favor of the appellants.

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