State ex rel. Keefe v. Eyrich

Wright, J.,

concurring. There is much to be said for judicial deference to the process whereby the electorate expresses its collective wisdom through an amendment to the Ohio Constitution. One could debate the merits of enforced retirement for judges at age seventy.2 I could indulge myself in such an exercise, giving dramatic examples of the "wisdom of such a provision from my own frame of reference. However, such a process is unnecessary when the substantial majority of the people has spoken on this subject. I say this because if one thing remains clear in the law, it is the proposition that this court should not take liberties with the literal language of the Ohio Constitution. For those who disagree with the constitutional mandate that led to this controversy, a remedy for change is readily available by resort to the same electorate that voted into place the Modern Courts Amendment to the Ohio Constitution. Section 6(C), Article IV of the Constitution.

The “strict scrutiny” analysis urged by the minority is entirely inappropriate. Age has never been considered a suspect classification for purposes of due process or equal protection analysis.3 See Vance v. Bradley (1979), 440 U.S. 93; Massachusetts Bd. of Retirement v. Murgia (1976), 427 U.S. 307. Also, no fundamental right is implicated by the mandatory retirement provisions.

Relator has no fundamental right to governmental employment, see Massachusetts Bd. of Retirement, supra, or to run for elective office, see Bullock v. Carter (1972), 405 U.S. 134. Relator imaginatively alleges an infringement of a fundamental right to vote for himself. Neither the United States Supreme Court nor this court has ever recognized a constitutional right to vote for a particular candidate.

The minority cites ballot access cases to support the contention that a fundamental right to vote is involved. See Illinois State Bd. of Elections v. *178Socialist Workers Party (1979), 440 U.S. 173; Communist Party of Indiana v. Whitcomb (1974), 414 U.S. 441; Bullock, supra. These cases express a concern that political and economic minorities be represented on the ballot. Certainly, the minority would agree that judges over the age of seventy represent no particular political viewpoint that would otherwise be denied to the voters. In fact, the concern inherent in the ballot access cases that diverse political viewpoints be represented in elections does not apply to a judicial election in Ohio, because candidates for judicial office are not allowed to announce their “views on disputed legal or political issues.” See Canon 7B(l)(c) of the Code of Judicial Conduct. A mandatory retirement provision imposes no bar upon any particular political or economic group seeking to field a candidate for election. The challenged retirement provision no more denies relator or any other voter the right to vote than do constitutional minimum age requirements for any elected official. See Clause 2, Section 2, Article I, United States Constitution (member of United States House of Representatives must be twenty-five years of age); Clause 3, Section 3, Article I, United States Constitution (member of United States Senate must be thirty years of age); Clause 4, Section 1, Article II, United States Constitution (President must be thirty-five years of age).

The United States Supreme Court has stated that “* * * not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. * * *” Bullock, supra, at 143. The challenged provision of the Ohio Modern Courts Amendment is simply a retirement provision that has just such an incidental impact upon ballot access. See Aronstam v. Cashman (1974), 132 Vt. 538, 325 A. 2d 361.

Even if relator’s assertions as to fundamental rights and suspect classifications were as colorable as they are creative, they certainly do not satisfy the strict standards this court has always applied to the issuance of a writ of mandamus. See, e.g., State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St. 3d 28. The mandatory judicial retirement provision in the Ohio Constitution is unambiguous. The Secretary of State has no clear legal duty to certify relator for the ballot. In fact, the Secretary of State has a clear legal duty to refuse to certify any candidate for judicial office who is over the age of seventy.

There is no vagueness or ambiguity in this constitutional provision. Like the restriction that a sitting judge may not run in a partisan election for political office, see, e.g., Morial v. Judiciary Comm. (C.A. 5, 1977), 565 F. 2d 295, certiorari denied (1978), 435 U.S. 1013, the age restriction is a reasonable restraint and does not deny relator due process or equal protection of the law.4 See Maimed v. Thornburgh (C.A. 3, 1980), 621 F. 2d 565, *179certiorari denied (1980), 449 U.S. 955; Rubino v. Ghezzi (C.A. 2,1975), 512 F. 2d 431, certiorari denied (1975), 423 U.S. 891; Trafelet v. Thompson (C.A. 7, 1979), 594 F. 2d 623, certiorari denied (1979), 444 U.S. 906. See, also, Boughton v. Price (1950), 70 Idaho 243, 215 P. 2d 286; In re Levy (La. 1983), 427 So. 2d 844; O’Neil v. Baine (Mo. 1978), 568 S.W. 2d 761; Grin-nell v. State (1981), 121 N.H. 823, 435 A. 2d 523; Maresca v. Cuomo (1984), 64 N.Y. 2d 242, 485 N.Y. Supp. 2d 724, 475 N.E. 2d 95; Nelson v. Miller (1971), 25 Utah 2d 277, 480 P. 2d 467; Aronstam v. Cashman, supra.

Thus, I concur in the majority opinion.

I have no doubt that relator is a competent and well-respected member of the judiciary who has served his constituents well and will continue to do so by way of appointment to service as a retired judge. See Section 6(C), Article IV of the Constitution.

No Ohio law makes age a suspect classification under these circumstances. Although R.C. 4112.02(A) provides that employers may not discriminate on the basis of age, the statute also provides for the establishment of mandatory retirement plans, R.C. 4112.02(O)(3).

Likewise, the prohibition of a two-term incumbent Governor from running for reelection has been found to be constitutionally permissible. See State, ex rel. Rhodes, v. Brown (1973), 34 Ohio St. 2d 101 [63 O.O.2d 189]. See, also, Talbot v. Pyke (C.A. 6, 1976), 533 F. 2d 331.