Hon . David F. Breck v. State of Michigan

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0049P (6th Cir.)
File Name: 00a0049p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
HON . DAVID F. BRECK; HON .
W ILLIAM LUCAS; HON .
C LAYTON E. P REISEL; HON .
M ICHAEL S CHWARTZ; HON .
GEORGE E. M ONTGOMERY ,
Plaintiffs-Appellants,
v.
S TATE OF M ICHIGAN ;
M ICHIGAN DEPARTMENT OF
S TATE ; M ICHIGAN BUREAU OF
ELECTIONS; C ANDICE M ILLER,
Secretary of State, Chief
Elections Officer; MARLENE
M. BRUNS, Clerk for the
County of Lapeer,
Defendants-Appellees.
;>

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No. 99-1628
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 98-74677—John Feikens, District Judge.
Argued: January 25, 2000
Decided and Filed: February 10, 2000

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2 Breck, et al. v. State of Michigan, et al. No. 99-1628
Before: NELSON, SUHRHEINRICH, and GILMAN,
Circuit Judges.
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COUNSEL
ARGUED: Michael J. Lebow, LEBOW & TOBIN,
Farmington Hills, Michigan, for Appellants. Katherine C.
Galvin, OFFICE OF THE ATTORNEY GENERAL, PUBLIC
EMPLOYMENT AND ELECTIONS DIVISION, Lansing,
Michigan, for Appellees. ON BRIEF: Michael J. Lebow,
LEBOW & TOBIN, Farmington Hills, Michigan, Mayer B.
Morganroth, MORGANROTH & MORGANROTH,
Southfield, Michigan, for Appellants. Marcelyn A. Stepanski,
S. Randall Field, JOHNSON, ROSATI, LaBARGE,
ASELTYNE & FIELD, Farmington Hills, Michigan, for
Appellees. Paul W. Cousino, Mt. Clemens, Michigan, for
Amicus Curiae.
_________________
OPINION
_________________
SUHRHEINRICH, Circuit Judge. Plaintiffs, five Michigan
state judges, appeal a summary judgment for Defendants,
State of Michigan and various state agents, on Plaintiffs'
federal equal protection challenge to state laws that render
them ineligible for re-election because of their age.
I. BACKGROUND
Plaintiffs-Appellants are several State of Michigan circuit
and probate judges contemplating re-election who will be
seventy years old on the election days for the judicial offices
that they seek. Plaintiffs are Judges David F. Beck, William
Lucas, Clayton E. Preisel, Michael Schwartz, and George E.
Montgomery. Defendants-Appellees are the State of
Michigan, Michigan Department of State, Michigan Bureau
of Elections, Secretary of State Candice S. Miller, and

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No. 99-1628 Breck, et al. v. State of Michigan, et al. 3
Marlene M. Bruns, County Clerk for the County of Lapeer.
Individual Defendants are variously involved in maintaining
and implementing state laws that render Plaintiffs ineligible
because of their age to stand for election to judicial office.
The State of Michigan does not require its judges to retire
at a certain age. Rather, the Michigan State Constitution
renders ineligible for election to a judicial office anyone who
is at least seventy years old on the election day for that
judicial office: "Justices and judges of courts of record must
be persons who are licensed to practice law in this state. No
person shall be elected or appointed to a judicial office after
reaching the age of 70 years." Mich. Const. art. 6, § 19. One
implementing statute denies eligibility to the office of circuit
court judge to anyone older than sixty-nine on the day of
election:
A person shall not be eligible to the office of judge of the
circuit court unless the person is a qualified elector of the
judicial circuit in which election is sought, as provided in
section 11 of article 6 of the state constitution of 1963, is
licensed to practice law in this state, and, at the time of
election, is less than 70 years of age.
Mich. Comp. Laws § 168.411 ("§ 411"). A similar statute
applies to probate court judges. See Mich. Comp. Laws
§ 168.431 ("§ 431"). The judicial terms for Michigan circuit
and probate judges are six years. See Mich. Comp. Laws
§§ 168.419 (circuit judges), 168.439 (probate judges).
Essentially, Michigan law creates two categories of seventy
to seventy-six year old people based on the relation of their
birthdays to the day of election. A successful judicial
candidate who becomes seventy years old after the election
day could possibly serve until he or she becomes seventy-six
years old. However, a person who is seventy years old on the
election day for a judicial office is simply ineligible for
election to that judicial office. Plaintiffs sued because they
will be seventy years old on election day and, therefore,
ineligible.

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4 Breck, et al. v. State of Michigan, et al. No. 99-1628
Plaintiffs requested a declaratory judgment that section 19
of article 6 of the Michigan Constitution of 1963 and sections
411 and 431 of the Michigan Compiled Laws are
unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment. The Fourteenth Amendment
provides “nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1, cl. 2. Plaintiffs claim
that the constitutional and statutory age restrictions are not
rationally related to the goal of preserving judicial
competence by eliminating judges who are over sixty-nine
years old.
After the parties filed cross motions for summary judgment,
the district court granted summary judgment to Defendants.
The district court reasoned that the challenged state laws did
not violate the Plaintiffs’ rights to equal protection because
the laws were rationally related to legitimate state objectives
of preserving judicial competency and enhancing
administrative efficiency by reducing the disruption of mid-
term judicial vacancies (assuming the existence of a
mandatory age retirement alternative) and promoting the
electorate's preferences by reducing the need for partisan
gubernatorial appointments.
II. DISCUSSION
Plaintiffs concede that preserving the competency of the
judiciary by eliminating older judges may be a legitimate goal
of the state. However, they contend that the laws are not
rationally related to this goal because they eliminate only
those people who turn seventy on or before the election but
not those who are sixty-nine or younger on the election day
and could possibly serve until they are seventy-six years old.
Defendants respond that Michigan's age-eligibility election
laws are sufficiently related to preserving judicial competency
because under rational basis review the Equal Protection
Clause does not require absolute precision in classifying
otherwise similarly situated groups where distinctions are
No. 99-1628 Breck, et al. v. State of Michigan, et al. 9
we are especially reluctant to question the exercise of
congressional judgment.
Id. at 83-84. See also Zielasko, 873 F.2d at 961-62.
For analysis of the present case, we assume, but do not
assess or necessarily endorse, the wisdom of the State of
Michigan in attempting to promote the competency of its
judiciary by eliminating candidates who are over sixty-nine
years old. We also recognize that the election eligibility laws
are not precisely or evenly tailored to eliminate such judges.
Nevertheless, we find that the election eligibility laws are
rationally related to preserving the competency of the
judiciary.
Even if the election eligibility laws were insufficiently
related to preserving the competency of the judiciary, the laws
are rationally related to other state purposes such as
promoting judicial efficiency and reducing partisan
appointments of judges. Disqualifying judicial candidates
over sixty-nine years of age promotes judicial efficiency by
avoiding the disruption in litigation from reassigning cases
because of mid-term judicial vacancies, assuming an alternate
mandatory age-retirement scheme. Further, the laws also
avoid the additional cost of conducting special judicial
elections. Moreover, limiting candidates to those who are
able to serve an entire term, again assuming alternative
mandatory age retirement, furthers the electorate's choice of
its judges by reducing the necessity of filling mid-term
judicial vacancies from mandatory retirements with partisan
gubernatorial appointments. See Mich. Comp. Laws
§§ 168.404, 168.409j, 168.424, 168.444, 168.467m. Because
the election eligibility laws are rationally related to these
objectives, the laws do not violate Plaintiffs' rights to equal
protection.
III. CONCLUSION
Accordingly, we AFFIRM the district court's grant of
summary judgment to Defendants.

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8 Breck, et al. v. State of Michigan, et al. No. 99-1628
because the classifications made by its laws are imperfect"
(quoting Murgia, 427 U.S. at 316, in turn quoting Dandridge
v. Williams, 397 U.S. 471, 485 (1970))). In Murgia, the Court
applied rational basis scrutiny and upheld the mandatory
retirement of state police officers at age fifty over an equal
protection challenge. The Court commented "that the
drawing of lines that create distinctions is peculiarly a
legislative task and an unavoidable one. Perfection in making
the necessary classifications is neither possible nor
necessary." Murgia, 427 U.S. at 314 (citing Dandridge, 397
U.S. at 485). In Vance, 440 U.S. at 109, the Court again
applied rational basis scrutiny and upheld mandatory
retirement for federal Foreign Service employees over an
equal protection challenge. The Vance Court acknowledged
and accepted some imprecision in the classification:
Even if the classification involved here is to some extent
both underinclusive and overinclusive, and hence the line
drawn by Congress imperfect, it is nevertheless the rule
that in a case like this "perfection is by no means
required." The provision "does not offend the
Constitution simply because the classification <is not
made with mathematical nicety . . . .'"
Vance, 440 U.S. at 108 (citations omitted).
Further, the Supreme Court has recognized and accepted
that some classifications have unnecessary and harsh results.
In Matthews v. Diaz, 426 U.S. 67 (1976), aliens were denied
federal aid because they did not satisfy a residency
requirement. The Court upheld the eligibility requirements:
[I]t remains true that some line is essential, that any line
must produce some harsh and apparently arbitrary
consequences . . . . The task of classifying persons . . .
inevitably requires that some persons who have an almost
equally strong claim to favored treatment be placed on
different sides of that line; the differences between the
eligible and ineligible are differences in degree rather
than differences in the character of their respective
claims. When this kind of policy choice must be made,
No. 99-1628 Breck, et al. v. State of Michigan, et al. 5
warranted. Defendants also maintain that the age-eligibility
election laws are rationally related to other legitimate state
goals, such as promoting administrative efficiency by
eliminating the disruption of mid-term vacancies (assuming
an alternate mandatory age retirement scheme) and advancing
the voters' choice of judicial candidates by reducing the
opportunity for mid-term gubernatorial appointments.
This Court reviews de novo a trial court's grant of summary
judgment. See Brooks v. American Broadcast Cos., 932 F. 2d
495, 500 (6th Cir. 1991). Summary judgment may be granted
if there is no genuine issue of material fact and defendant is
entitled to judgment as a matter of law. See Maddox v.
University of Tennessee, 62 F.3d 843, 854 (6th Cir. 1995).
We agree with the Defendants and affirm the decision of the
district court for the following reasons.
Rational basis scrutiny applies to equal protection
challenges to mandatory age-retirement statutes. See Gregory
v. Ashcroft, 501 U.S. 452 (1991). In Gregory, the plaintiffs,
state judges, challenged the Missouri Constitution’s
mandatory retirement provision for judges at age seventy.
After litigation in the Missouri state courts, the United States
Supreme Court applied rational basis scrutiny and found that
the Missouri Constitution did not violate the Equal Protection
Clause. The Supreme Court applied rational basis scrutiny
because age is not a suspect classification under the Equal
Protection Clause and because candidacy for judicial office
does not implicate any fundamental right. See id. at 470.
The Sixth Circuit addressed a case very similar to the
present case and also applied the rational basis test. See
Zielasko v. State of Ohio, 873 F.2d 957 (6th Cir. 1989). In
Zielasko, the Ohio Constitution prohibited people over sixty-
nine years old from standing for election to judicial office.
This Court applied rational basis scrutiny:
[T]he threshold question in deciding an equal protection
claim is to decide the appropriate level of scrutiny to
apply to the restriction or classification at issue. In most
cases distinctions and classifications "need only be drawn

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6 Breck, et al. v. State of Michigan, et al. No. 99-1628
in such a manner as to bear some rational relationship to
a legitimate state end." Departure from this rational
relationship test is permitted "only when the challenged
statute places burdens upon 'suspect classes' of persons or
on a constitutional right that is deemed to be
'fundamental.'" In such an instance courts are to apply
strict scrutiny, that is, "'scrutiny' more vigorous than that
which the traditional principles would require." The
district court correctly found that the rational relationship
test was applicable to this case because age is not a
"suspect" classification, and because, contrary to
Zielasko and Bowman's assertions, running for office is
not a "fundamental right."
Id. at 959 (citations omitted). The present case involves both
candidacy for judicial office and a candidate’s age.
Accordingly, we will apply rational basis scrutiny to
Plaintiffs’ equal protection claim.
Rational basis scrutiny, a deferential review, only requires
a state of facts that provide a conceivable basis for the
classification. See Allied Stores v. Bowers, 358 U.S. 522, 530
(1959). To withstand constitutional review, the classification
simply must be rationally related to the goal or purpose of the
classification. Minnesota v. Clover Leaf Creamery Co., 449
U.S. 456, 464 (1981). Rational basis review does not assess
the wisdom of the challenged regulation. See Massachusetts
Bd. of Retirement v. Murgia, 427 U.S. 307, 316 (1976)
(noting that the Court did not assess the wisdom of requiring
police officers to retire at age fifty-five); see also Stiles v.
Blunt, 912 F.2d 260, 267 (8th Cir. 1990) (applying rational
basis review to Missouri’s minimum age requirement for state
legislative office while withholding the court’s own
evaluation of the law's wisdom). Further, whether the
identified legitimate state interests were actually considered
in establishing the prohibition is irrelevant. See Flemming v.
Nestor, 363 U.S. 603, 612 (1960); Zielasko, 873 F.2d at 961.
Likewise, whether a legislature "was unwise in not choosing
a means more precisely related to its primary purpose is
No. 99-1628 Breck, et al. v. State of Michigan, et al. 7
irrelevant." See Vance v. Bradley, 440 U.S. 93, 109 (1979)
(citing Califano v. Jobst, 434 U.S. 47, 56-58 (1977)).
In Gregory, the Supreme Court recognized any one of the
following objectives as a sufficient rational basis to sustain a
mandatory retirement provision for judges against an equal
protection challenge: (1) avoiding tedious and difficult
individualized review of physical and mental qualifications;
(2) increasing opportunity for judicial office and orderly
attrition through retirement; and (3) promoting predictability
and ease in administration of pension plans. See Gregory,
501 U.S. at 471-72.
In applying rational basis scrutiny in Zielasko, this Court
recognized mandatory retirement as rationally related to
several legitimate state interests such as creating openings for
younger judges, easing court dockets by creating a pool of
part-time judges, and reducing age-related incompetence of
some older judges. See Zielasko, 873 F.2d at 961 (citing State
ex rel. Keefe v. Eyrich, 489 N.E.2d 259 (Ohio 1986)).
In the present case, Defendants simply must show that the
age limitation on election eligibility is rationally related to a
legitimate public purpose. Plaintiffs argue that the age-
eligibility election laws violate the Equal Protection Clause
because they are not rationally related to the state’s interest in
preserving judicial competency by eliminating candidates
who are over sixty-nine years old. Clearly, the laws only
prohibit the election of people who are already seventy but do
not prohibit the election of candidates who are sixty-nine or
younger and might serve until they are seventy to seventy-six
years old. Nevertheless, Plaintiffs' arguments are not
persuasive for several reasons.
The age-eligibility election laws are sufficiently rationally
related to preserving the competency of the Michigan
judiciary. Rational basis scrutiny of an equal protection
challenge tolerates some imprecision in classifying otherwise
similarly situated people where a state has determined that
some distinction is warranted. See Gregory, 501 U.S. at 473
(a state "does not violate the Equal Protection Clause merely

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