Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 1036 - Prentice H. Marshall, Judge.
Before Tone, Lay,*fn* and Bauer, Circuit Judges.
This action challenges the constitutionality of the Illinois Compulsory Retirement of Judges Act. Section 1 of that Act, Ill.Rev.Stat. ch. 37 § 23.71 (1977), provides in substance that a judge is automatically retired after the next general election following his 70th birthday.*fn1 Section 2, Id. § 23.72, creates grandfather exceptions to § 1, which, so far as they are pertinent here, allow the excepted judges to remain in office until they have served long enough to secure certain pension rights.*fn2 After a trial, the district court held that the Act did not violate either the United States Constitution or the Illinois Constitution and entered judgment for the defendants. We affirm the judgment.
The district court certified two classes of plaintiffs: (1) all judges of the Supreme, Appellate, and Circuit Courts of Illinois whom the Act will force into retirement before the expiration of their certified terms or preclude from running for retention in office;*fn3 and (2) all registered voters in Illinois who will be denied the opportunity to vote for the judicial candidates of their choice because the Act precludes those candidates from running for election to, or retention in, office. The defendants are the state officers responsible for executing the provisions of the challenged statute.
The plaintiff judges assert several challenges to the Act. Section 1 (s 23.71) is attacked on two federal grounds:
(1) It is said to violate the equal protection clause of the Fourteenth Amendment by creating distinctions between judges of the age of 70 and older and judges younger than 70, and between judges and all other elected officials, who are not subject to mandatory retirement provisions. These distinctions, it is argued, are not rationally related to the stated purpose of the Act.
(2) It is said to violate the due process clause of the Fourteenth Amendment by creating an irrebuttable presumption.
Section 2 of the Act (s 23.72) is attacked on one federal and one state ground:
(1) It is said to violate equal protection by allowing certain judges to remain in office beyond the age of 70 on the basis of criteria unrelated to the purpose of the Act.
(2) It is said to violate Article VI, § 15(a) of the Illinois Constitution*fn4 by failing to prescribe a single age at which judges must retire.
The plaintiff voters assert that the Act violates their rights under the equal protection clause by discriminatorily denying them the opportunity to vote for candidates of their choice.
1. Equal Protection Challenges to § 1 of the Act.
The applicable standard is whether the challenged classification is rationally related to a proper legislative purpose. Neither the right of governmental employment, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976), nor the right to run for elective office, Bullock v. Carter, 405 U.S. 134, 142-143, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972), is fundamental. See J. Nowak, R. Rotunda, and J. N. Young, Handbook on Constitutional Law 686 and 643 (1978) and L. Tribe, American Constitutional Law, § 13-19 at 775-777 (1978). Judicial office is no exception. Napolitano v. Ward, 457 F.2d 279, 284 (7th Cir. 1972), Cert. denied, 409 U.S. 1037, 93 S. Ct. 512, 34 L. Ed. 2d 486 (1973). Furthermore, age is not a suspect classification for equal protection purposes. Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 313-314, 96 S. Ct. 2562. Accordingly, like the plaintiffs in Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979), in which the Supreme Court sustained a statute providing for mandatory retirement of Foreign Service officers at age 60, the plaintiff judges here concede that the rational relationship standard is applicable and contend only that the court failed to apply the correct standard properly.
The judges do argue, however, that we may properly consider only those legislative purposes articulated by the state at the time the statute was enacted. Whatever doubt on this point may have been engendered by language in some of the cases in recent years*fn5 seems to have been resolved by the Supreme Court's recent opinion in Vance v. Bradley, supra. There the Court, referring to the rational relationship standard, said,
In an equal protection case of this type . . . 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.
-- - U.S. at -- , 99 S. Ct. at 950. In support of that statement the Court cited several cases stating the standard of whether any state of facts may reasonably be conceived to justify the classification*fn6 and described McGinnis v. Royster, 410 U.S. 263, 274, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973), with apparent approval as "finding that the legislature "could have concluded rationally that' certain facts were true." We conclude that we are not limited to the ...