Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 16, 2003
ANNABELLE R. HARVEY, beneficiary
and successor of Paul Harvey,
deceased, and MICHAEL F. MERRITT,
Judge, retired, substituted for
Bruce A. Fox, Judge, retired,
Plaintiffs-Appellees,
v No. 121672
STATE OF MICHIGAN, DEPARTMENT OF
MANAGEMENT AND BUDGET, BUREAU OF
RETIREMENT SERVICES, AND JUDGES
RETIREMENT BOARD,
Defendants-Appellants.
___________________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
We took this case to consider the constitutionality of
the district court judicial pension provisions of the Judges
Retirement Act, MCL 38.2101 et seq., as amended in the court
reorganization act of 1980, 1980 PA 438 through 443.1 The
Court of Appeals reviewed plaintiffs' equal protection
challenge and concluded that the statute was unconstitutional,
utilizing the intermediate scrutiny test. We hold that the
statute is constitutional and the proper standard is the
rational-basis test. Accordingly, we reverse the decision of
the Court of Appeals and enter a judgment in favor of
defendants.
I. FACTUAL & PROCEDURAL BACKGROUND
Plaintiffs are retired state district court judges who
served throughout the state in districts other than the 36th
Judicial District in Detroit. They have asserted that the
Judges Retirement Act violates the Equal Protection Clause of
the Michigan Constitution2 by allowing the state to provide
a greater retirement allowance to 36th District Court judges
than to all others. The act provides 36th District Court
judges a pension based on their former total salary, whereas
it provides the others a pension based on only a portion of
their former total salary.
Before 1980, in all Michigan's trial level judicial
districts, judicial salaries were paid partly by the state and
partly by a local funding unit, usually a city or county. In
1
Specifically, MCL 38.2104(1)(b) and (d), and MCL
38.2108(3) and (8).
2
Const 1963, art 1, § 2.
2
accordance with this dual salary system, all state trial level
judges belonged to two retirement systems: one maintained by
the state and one by the local funding unit.
In 1980, the Legislature created a new funding scheme for
state judicial retirees as part of the court reorganization
act, 1980 PA 438 through 1980 PA 443. Through this act, the
Legislature sought to require the state to begin to fully
assume the cost of state court operations, starting with the
36th Judicial District. Concomitant with this funding, the
Legislature amended the Judges Retirement Act to establish the
state as the provider of both the state and local components
of 36th Judicial District Court judges' salaries.
Accordingly, the state pays both the state and local
components of 36th Judicial District Court judges' retirement
benefits.
In succeeding years, the goal of full state funding of
court operations was not fulfilled. Nevertheless, the state
continues to fund one hundred percent of 36th Judicial
District judges' pensions. The retirement systems and
pensions of judges outside the 36th Judicial District continue
to be funded by both state and local sources. Depending on
the funding and contribution levels in their local government
retirement schemes, these judges may receive a greater or
lesser retirement benefit than do the judges of the 36th
Judicial District.
3
Plaintiffs commenced the present suit in 1994. The
circuit court granted defendants' motion for summary
disposition, concluding that the Judges Retirement Act does
not violate the Equal Protection Clause when subjected to
review under the rational-basis test. The Court of Appeals
reversed the decision and remanded, holding that the court
should have employed an intermediate scrutiny test in deciding
this case. Unpublished opinion per curiam, issued January 3,
1997 (Docket No. 187112)(Harvey I).
On remand, the circuit court again found for defendants,
holding that the act satisfies intermediate scrutiny. The
Court of Appeals again reversed the lower court, applying the
intermediate scrutiny test itself and holding the Act
unconstitutional. It also remanded the case for further
proceedings concerning the appropriate remedy. 251 Mich App
323; 650 NW2d 392 (2002)(Harvey II).
Upon defendants' application, this Court granted leave to
appeal. In our grant order, we directed the parties to
include among the issues to be briefed:
(1) [T]he applicable level of scrutiny under
Fourteenth Amendment analysis, (2) the current
viability, if any, of Manistee Bank v McGowan, 394
Mich 655 [232 NW2d 636] (1975), and (3) this
Court's ability to order the relief requested,
inter alia, fully state-funded pensions for
outstate judges, prospectively and retroactively,
in light of Const 1963, art 1, § 2; art 3, § 2; art
4, § 1; Lewis v Mich, 464 Mich 781, 786-787 (2001);
see also North Ottawa Hosp v Kieft, 457 Mich 394,
408 n 141 (1998); 77th Dist Judge v Michigan, 175
4
Mich App 681 (1989). [467 Mich 899 (2002).]
II. PRINCIPLES OF REVIEW
We review summary disposition judgments and
constitutional issues de novo. Taylor v Gate Pharmaceuticals,
468 Mich 1, 5; 658 NW2d 127 (2003). The Equal Protection
Clause of the Michigan Constitution declares that "[n]o person
shall be denied the equal protection of the laws . . . ."
Const 1963, art 1, § 2. We have interpreted this clause to be
coextensive with its federal counterpart.3 Crego v Coleman,
463 Mich 248, 258; 615 NW2d 218 (2000); Vargo v Sauer, 457
Mich 49, 60; 576 NW2d 656 (1998); Doe v Dep't of Social
Services, 439 Mich 650, 662; 487 NW2d 166 (1992).
III. ANALYSIS
Not all legislative enactments that group people into
classifications affront the Equal Protection Clause. Indeed,
many legitimately group people on the basis of such
considerations as (1) their income for purposes of the tax
laws, (2) their income for purposes of eligibility for social
services, or (3) their conduct for purposes of imposing
criminal sanctions. A court evaluates equal protection
3
By this, we do not mean that we are bound in our
understanding of the Michigan Constitution by any particular
interpretation of the United States Constitution. We mean
only that we have been persuaded in the past that
interpretations of the Equal Protection Clause of the
Fourteenth Amendment have accurately conveyed the meaning of
Const 1963, art 1, § 2 as well.
5
challenges to the constitutional validity of a classification
using one of three levels of scrutiny, depending on the nature
of the classification. Plyler v Doe, 457 US 202, 216-217; 102
S Ct 2382; 72 L Ed 2d 786 (1982).
In Crego, we articulated the three levels of scrutiny:
The highest level of review, or "strict
scrutiny," is invoked where the law results in
classifications based on "suspect" factors such as
race, national origin, or ethnicity, none of which
are [sic] implicated in this case. Plyler v Doe,
457 US 202, 216-217; 102 S Ct 2382; 72 L Ed 2d 786
(1982). Absent the implication of these highly
suspect categories, an equal protection challenge
requires either rational-basis review or an
intermediate, "heightened scrutiny" review.
A. Where rational basis applies
Under rational-basis review, courts will
uphold legislation as long as that legislation is
rationally related to a legitimate government
purpose. Dandridge v Williams, 397 US 471, 485; 90
S Ct 1153; 25 L Ed 2d 491 (1970). To prevail under
this highly deferential standard of review, a
challenger must show that the legislation is
"arbitrary and wholly unrelated in a rational way
to the objective of the statute." Smith v
Employment Security Comm, 410 Mich 231, 271; 301
NW2d 285 (1981). A classification reviewed on this
basis passes constitutional muster if the
legislative judgment is supported by any set of
facts, either known or which could reasonably be
assumed, even if such facts may be debatable.
Shavers v Attorney General, 402 Mich 554, 613-614;
267 NW2d 72 (1978). Rational-basis review does not
test the wisdom, need, or appropriateness of the
legislation, or whether the classification is made
with "mathematical nicety," or even whether it
results in some inequity when put into practice.
O'Donnell v State Farm Mut Automobile Ins Co, 404
Mich 524, 542; 273 NW2d 829 (1979). Rather, the
statute is presumed constitutional, and the party
challenging it bears a heavy burden of rebutting
that presumption. Shavers, supra.
6
B. Where heightened scrutiny applies
The United States Supreme Court has recognized
an intermediate level of review, between strict
scrutiny and rational-basis review, under which a
challenged statutory classification will be upheld
only if it is "substantially related to an
important governmental objective." Clark v Jeter,
486 US 456, 461; 108 S Ct 1910; 100 L Ed 2d 465
(1988). This "heightened scrutiny" standard has
been applied to legislation creating
classifications on such bases as illegitimacy and
gender. The standard recognizes that, while there
may be certain immutable distinctions, for example,
between men and women or between legitimate and
illegitimate children, that justify differing
legislative treatments under some circumstances,
the Legislature's authority to invoke those
distinctions should not be viewed as an
"impenetrable barrier that works to shield
otherwise invidious discrimination." Gomez v Perez,
409 US 535, 538; 93 S Ct 872; 35 L Ed 2d 56 (1973).
See also, e.g., Clark, supra; Mills v Habluetzel,
456 US 91; 102 S Ct 1549; 71 L Ed 2d 770 (1982);
Mathews v Lucas, 427 US 495, 505-506; 96 S Ct 2755;
49 L Ed 2d 651 (1976) (all applying heightened
scrutiny to classifications based on illegitimacy).
Thus, where an equal protection claim alleges
unconstitutional treatment on the basis of
illegitimacy, the Supreme Court has held that "a
State may not invidiously discriminate against
illegitimate children by denying them substantial
benefits accorded children generally." Gomez, supra
at 538. However, where a challenged statute is
substantially related to an important state
interest, the statute should be upheld. Mills,
supra at 98-99. [Crego, supra at 259-261.]
Here, as in Crego, plaintiffs' constitutional challenge does
not implicate strict scrutiny review.
IV. THE PROPER LEVEL OF SCRUTINY TO APPLY IN THIS CASE
The key question in this appeal is which of two tests
should be applied: intermediate scrutiny or rational-basis
scrutiny? In Harvey I, the Court of Appeals held that the
7
appropriate test to apply to the Judges Retirement Act is the
intermediate scrutiny test. The Court made this decision in
reliance on Manistee Bank, supra.
A. The Validity of Manistee Bank
In Manistee Bank, this Court considered an equal
protection challenge to the automobile guest statute,4 which
prohibited suits against automobile drivers by their
passengers. Before 1971, there existed two levels of review
for equal protection challenges.
The intermediate scrutiny standard emerged from the
United States Supreme Court's decision in Reed v Reed, 404 US
71; 92 S Ct 251; 30 L Ed 2d 225 (1971). There, the Court
evaluated a gender classification by considering whether it
was "reasonable, not arbitrary, and [rested] upon some ground
of difference having a fair and substantial relation to the
object of the legislation . . . ." Id. at 76, quoting FS
Royster Guano Co v Virginia, 253 US 412, 415; 40 S Ct 560; 64
L Ed 989 (1920). The 1975 Manistee Bank Court, relying on a
law review article,5 recognized the novelty of the Reed
formulation, dubbing it the "fair-and-substantial-relation-to
the-object-of-the-legislation test." Manistee Bank, supra at
4
MCL 257.401.
5
Gunther, Foreward: In search of evolving doctrine on a
changing court: A model for a newer equal protection, 86 Harv
L R 1 (1972).
8
670.
After recognizing the new intermediate scrutiny test, the
Court held that it applied to statutes like the automobile
guest statute, which created "a discrete exception" to the
common law that was "no longer experimental," Manistee Bank,
supra at 671-672:
In my judgment, at least where the challenged
statute carves out a discrete exception to a
general rule and the statutory exception is no
longer experimental, the substantial-relation-to
the-object test should be applied.
Judicial deference to the Legislature is
premised in part upon the perceived need for
experimentation, especially in social and economic
matters.
"[T]he Equal Protection Clause does not
require that a state must choose between attacking
every aspect of a problem or not attacking the
problem at all."47
The guest passenger statutes have operated for
45 years to deny a discrete group--guest
-
passengers--recovery for death, injury or loss
-
caused by ordinary negligence. They have been
criticized, amended, repealed, whittled away and
struck down.
A court can no longer properly view the guest
statutes as but the first experimental step in a
legislative scheme designed eventually to require,
for example, that gross negligence be shown before
any person can recover for injuries suffered in an
automobile accident.
Where a classification scheme creates a
discrete exception to a general rule and has been
enforced for a sufficiently long period of time
that all the rationales likely to be advanced in
its support have been developed, a court should
fully examine those rationales and determine
whether they are sound.
9
__________________________________________________
47
Dandridge v Williams, [397 US 471,] 486-487[n
24; 25 L Ed 2d 491 (1970)].
___________________________________________________
Thus, Manistee Bank stands for two propositions. First,
the intermediate scrutiny test should be applied to certain
equal protection challenges. Second, the test applies to
"discrete exception" situations that occur when a statute
creates an exception to a general rule and the exception is no
longer considered experimental.
We need not consider the wisdom of the Manistee Bank
Court's recognition of the intermediate scrutiny test. Even
had the Court not recognized its validity, the test has become
established in federal equal protection jurisprudence,6 and
our state Equal Protection Clause is coextensive with federal
equal protection.7 Rather, we must determine whether the
intermediate scrutiny test applies in the "discrete exception"
situation identified in Manistee Bank.
We conclude that it does not and that the second holding
in Manistee Bank is flawed. First, the "discrete exception"
justification for the application of intermediate scrutiny
review has not found support in federal equal protection
jurisprudence. The Manistee Bank Court decision determined
that the age of certain legislative enactments permits the
6
E.g., Plyler, supra at 217.
7
Crego, supra.
10
court to inquire more deeply into the rationales behind them.
However, the United States Supreme Court has applied the
intermediate scrutiny test only to challenges involving quasi
suspect classes, such as gender8 and illegitimacy.9 The
federal Equal Protection Clause has never been expanded to
permit a close scrutiny of legislative wisdom beyond those
cases involving suspect or quasi-suspect classes. Certainly,
the United States Supreme Court has not applied intermediate
scrutiny review in any case involving a "discrete exception"
to a general rule no longer considered experimental.
Moreover, after Manistee Bank was decided, this Court
adhered to the federal courts' limited view of when
intermediate scrutiny review should apply. In Frame v Nehls,10
we stated that determining the appropriate test applicable to
equal protection challenges is largely a choice between strict
scrutiny and rational basis.11 "Unless the discrimination
impinges on the exercise of a fundamental right or involves a
suspect class, the inquiry . . . is whether the classification
8
See Craig v Boren, 429 US 190; 97 S Ct 451; 50 L Ed 2d
397 (1976).
9
See Clark v Jeter, supra.
10
452 Mich 171, 183; 550 NW2d 739 (1996).
11
The Frame Court implicitly acknowledged that
intermediate scrutiny would apply if the classification in
that case were based on illegitimacy. Frame, supra at 182 n
11, 187 n 16.
11
is rationally related to a legitimate governmental purpose."
Id. at 183.
Similarly, in Yaldo v North Pointe Ins Co,12 we stated:
"Defendant is not a member of a protected class, nor are
fundamental rights involved. Therefore, defendant's equal
protection claim is reviewed using a rational basis test." As
a final example, in Vargo,13 we stated: "Because, there is no
fundamental right or suspect classification involved, the
rational-basis standard of review governs in the present
case." These cases demonstrate our adherence to the federal
trend that limits the application of intermediate scrutiny to
cases involving suspect classifications that do not require
strict scrutiny.
Likewise, this Court recently failed to apply the
Manistee Bank analysis to an equal protection challenge
involving a discrete exception to a general rule. In Crego,
we evaluated a repealed section of MCL 722.713. It permitted
the mother of an illegitimate child to enter into a
nonmodifiable child support agreement with the putative father
in lieu of the court determining paternity and setting a
support amount. This statute represented a forty-year-old
exception to the general rule allowing for the modification of
12
457 Mich 341, 349; 578 NW2d 274 (1998).
13
Vargo, supra at 60.
12
child support agreements.
Although Crego involved a discrete exception no longer
considered experimental, we held that intermediate scrutiny
would apply only if the classification were considered to be
based on illegitimacy. Because the classification in the
statute was based on the ascertainment of paternity, rational
basis scrutiny was applied. Significantly, the Court gave no
consideration to the idea that, because the challenged statute
excepts from a general rule, intermediate scrutiny should
apply.
Thus, the present state of both federal and Michigan
equal protection jurisprudence fails to support application of
the intermediate scrutiny test to statutes that create "a
discrete exception to a general rule" where the exception "is
no longer considered experimental." Accordingly, we overrule
the Manistee Bank holding to the extent that it created the
“discrete exception to a general rule” basis for applying
intermediate scrutiny. We affirm its recognition of the
existence of the intermediate scrutiny test.
B. The Propriety of Rational Basis Review
Given the state of the law and because this case does not
involve a quasi-suspect classification, we hold that the Court
of Appeals erred in ordering application of the intermediate
13
scrutiny test.14 The circuit court correctly held that
plaintiffs' claim must be judged using the rational-basis
test.
In holding that rational-basis review applies, we find
strong support in Hughes v Judges' Retirement Bd,15 decided
just four years after Manistee Bank. There, the Court
considered a similar equal protection claim concerning a
statute that amended the Judges Retirement Act to increase the
pension benefits to judges who retired after its effective
date. The amendment caused the pensions of judges who
remained in the system or were new to it to be greater than
the pensions of those who had already retired.
In assessing the equal protection challenge brought by
the already-retired judges, the Court unanimously chose to
consider the judges a classification that should be analyzed
under the rational-basis test. It stated:
“This Court has many times held that
legislation is not unconstitutional because it is
legislation of a particular kind or character, or
because it benefits a particular class, so long as
the law operates equally upon those within the
particular class. In re Phillips, 305 Mich 636 [9
NW2d 872 (1945)]; Lake Shore Coach Lines, Inc v
Secretary of State, 327 Mich 146 [41 NW2d 503
(1950)]; People's Appliance, Inc v City of Flint,
14
In Harvey II, the Court of Appeals compounded its error
by adopting the dicta analysis of 77th Dist Judge v Michigan,
175 Mich App 681; 438 NW2d 333 (1989), which opined that the
Judges Retirement Act fails the intermediate scrutiny test.
15
407 Mich 75; 282 NW2d 160 (1979).
14
358 Mich 34 [99 NW2d 522 (1959)]. . . . This Court
cannot and will not question [the Legislature's]
reasons unless they appear to be palpably arbitrary
or unreasonable. Ver Hoven Woodward Chevrolet, Inc
v Dunkirk, 351 Mich 190 [88 NW2d 408 (1958)];
Metropolitan Funeral System Ass'n v Commissioner of
Insurance, 331 Mich 185 [49 NW2d 131 (1951)].”
[Hughes, supra at 93, quoting Burgess v Detroit,
359 Mich 269; 280; 120 NW2d 483 (1960).]
The Court then described why the Legislature’s actions
were rational, saying that it was sufficient to meet this test
that the Legislature was inducing "competent and qualified
attorneys to become judges, or to remain judges if already in
office." Hughes, supra at 94. Thus, the rational-basis test
had been satisfied and the statute was constitutional.
In our case, a similar analysis is appropriate. The
state, by assuming the entire funding of the pensions of 36th
District judges in the financially distressed city of Detroit,
made those pensions more secure. Certainly the Legislature
would or could understand that this would induce competent and
qualified attorneys to become judges or to remain judges, just
as the legislation did in Hughes.16 Accordingly, we agree with
the trial court's holding that plaintiffs have not satisfied
their burden to show that there was no rational basis for this
legislation. Thus, the statute withstands constitutional
scrutiny.
16
We note that it is likely that the Legislature was
motivated by other rational grounds as well. However, we need
not consider these as the case can be resolved, as was Hughes,
on this ground alone.
15
V. CONCLUSION
For the reasons set forth in this opinion, we hold that
the Judges Retirement Act is constitutional. The Court of
Appeals erred in evaluating plaintiffs' equal protection
challenge using the intermediate scrutiny test and in holding
the act unconstitutional. When the correct test, rational
basis scrutiny, is applied, plaintiffs are unable to show that
no rational basis exists for the act's disparate treatment of
36th Judicial District judges. Moreover, we find that a
rational basis did exist. Accordingly, because the contested
portions of the Judges Retirement Act survive rational-basis
scrutiny, we hold them constitutional and reverse the decision
of the Court of Appeals. The original judgment of the Ingham
Circuit Court is reinstated.
Marilyn Kelly
Maura D. Corrigan
Michael F. Cavanagh
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
16
S T A T E O F M I C H I G A N
SUPREME COURT
ANNABELLE R. HARVEY, beneficiary
and successor of Paul Harvey,
deceased, and MICHAEL F. MERRITT,
Judge, retired, substituted for
Bruce A. Fox, Judge, retired,
Plaintiffs-Appellees,
v No. 121672
STATE OF MICHIGAN, DEPARTMENT OF
MANAGEMENT AND BUDGET, BUREAU OF
RETIREMENT SERVICES, AND JUDGES
RETIREMENT BOARD,
Defendants-Appellants.
___________________________________
WEAVER, J. (dissenting).
I respectfully dissent. Applying the analysis of
Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636
(1975), which the majority overrules, I would affirm the Court
of Appeals decision that the statutory scheme concerning
pension benefits of the judges of the 36th Judicial District
is unconstitutional because it violates equal protection.
Moreover, even under the rational-basis test, I would conclude
that the funding scheme is unconstitutional.
Because the statute at issue in Manistee Bank involved a
discrete exception to the general rule and the statutory
exception was no longer experimental, the Court employed a
“f a i r - a n d - s u b s tantial-relation-to-the-object-of-t he
legislation” test. Id. at 670-671. The Court further
explained:
Where a classification scheme creates a
discrete exception to a general rule and has been
enforced for a sufficiently long period of time
that all the rationales likely to be advanced in
its support have been developed, a court should
fully examine those rationales and determine
whether they are sound. [Id. at 672.]
Likewise, the statutory scheme at issue in the present
case involves a discrete exception to the general rule:
pension benefits for 36th District judges are funded
differently than the pension benefits for the rest of the
district judges in the state. Applying the test articulated
in Manistee Bank to a similar, older version of the current
statutory scheme, a Court of Appeals panel in a previous case
struck down the scheme, explaining:
We hold that the statutory disparity in
treatment as to the compensation, retirement
funding obligations, and retirement benefits
violates equal protection. We are unable to
discern any constitutionally appropriate basis for
the disparities that would permit us to find a
reasonable relationship to the object of the
legislation or that would avoid the conclusion that
the 36th District judges’ preferred compensation
treatment is arbitrary and unreasonable. Even
th
though 36 District judges do serve in the most
populous area of this state, defendant has not
shown that the judges’ duties are thereby expanded;
statistical data submitted in this case suggests
that their individual case load is less than
plaintiff’s own case load. Although defendant
2
suggests that the particular compensation package
afforded 36th District judges is attributable to the
transitions from those judicial positions
superseded by the creation of the 36th District
Court, it remains to be explained the significance
these historical facts have at this present time or
why they serve to justify more favorable
compensation and benefits. In short, no reason has
been put forth explaining why the duties,
responsibilities, and circumstances of service
obtaining in the 36th District Court provide the
basis for any reasonable justification of more
favorable treatment than their counterparts in the
other judicial districts of this state.
Accordingly, we find ourselves in agreement with
the ruling of the Court of Claims that the
statutory disparities are unconstitutional. [77th
Dist Judge v Michigan, 175 Mich App 681, 691-692;
438 NW2d 333 (1989).]
This analysis is equally applicable to the present case.
The statutory scheme guarantees 36th District judge retirees
a level of retirement benefits that is not guaranteed to other
district judges. Therefore, applying Manistee Bank, I would
conclude that the statutory scheme at issue is
unconstitutional because it violates equal protection.
Moreover, even if this case were analyzed under the
rational-basis test, I would still conclude that the statutory
scheme at issue is unconstitutional. As we explained in
Reich v State Hwy Dep’t, 386 Mich 617, 623; 194 NW2d 700
(1972), when considering an equal-protection challenge to a
statute, the classification at issue must bear a reasonable
relationship to the recognized purpose of the act. It may not
be arbitrary or unreasonable. Id. (emphasis added). While
3
deferential, the rational-basis test should not be applied so
deferentially as to lack any substance. This Court is not
simply a rubber stamp for anything the Legislature enacts.
The original goal of the funding scheme was to require
the state to begin to fully assume the cost of state-court
operations. However, since the Legislature created the
funding scheme in 1980, it has taken no further steps to fully
fund pension benefits for any other district courts. Thus, if
there was a rational basis when the statutory scheme was
enacted, it does not continue now, twenty-three years later,
when the Legislature has taken no further steps toward its
goal to fully assume the cost of state-court operations.1
Therefore, even under the rational-basis test, the Court
should conclude that the statutory scheme is unconstitutional
because it violates equal protection.
Elizabeth A. Weaver
1
The majority’s argument that the rational-basis test is
satisfied because the funding scheme would attract competent
and qualified attorneys to become judges is not persuasive.
First, as noted, the goal of the legislation was to require
the state to begin fully funding state-court operations.
Second, there is no lack of candidates for judicial office in
districts where pension benefits are not fully funded. Thus,
inducing competent and qualified attorneys to become judges
should not be considered a rational basis for the statutory
scheme.
4