Maddux v. Blagojevich

JUSTICE KARMEIER,

dissenting:

The Compulsory Retirement of Judges Act (the Retirement Act) (705 ILCS 55/1 et seq. (West 2006)) provides in relevant part that “[a] judge is automatically retired at the expiration of the term in which the judge attains the age of 75.” 705 ILCS 55/1 (West 2006). The issue in this case is whether the Retirement Act exceeds the authority conferred on the General Assembly by the Illinois Constitution to prescribe a retirement age for judges. For the reasons that follow, I would hold that the Retirement Act, as it has been interpreted by Illinois case law, comports with the Constitution and is valid. I therefore respectfully dissent.

As described in the majority’s opinion, plaintiffs are a Cook County circuit court judge named William D. Maddux and five Cook County voters who are eligible to vote in judicial elections and would like to vote to retain Judge Maddux in office. Plaintiffs filed a declaratory judgment action in the circuit court of Cook County challenging the constitutionality of the Retirement Act on a number of grounds, including that it impermissibly imposes limitations on the judicial retention process in violation of article VI, section 12(d), of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, § 12(d)). Plaintiffs named as defendants the Governor of Illinois, the members of the Illinois State Board of Elections and the Cook County clerk. The defendant Governor moved to dismiss the complaint under section 2 — 619(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 619(a) (West 2006)), claiming that there was no actual controversy between himself and the plaintiffs. The Board defendants moved to dismiss under section 2 — 615 of the Code (735 ILCS 5/2 — 615 (West 2006)), on the ground that the complaint failed to state a claim that the Act is unconstitutional. Plaintiffs moved for summary judgment, relying solely on the facts alleged in the complaint and claiming they were entitled to judgment as a matter of law.

According to plaintiffs’ complaint, Judge Maddux currently serves as presiding judge of the Law Division of the Cook County circuit court. Plaintiffs allege that Judge Maddux was first appointed circuit judge in 1991 and was subsequently elected to that post in 1992. He won retention to the office in 1998 and then again in 2004.18 His current term expires in 2010. By that time, Judge Maddux will be 75 years old and will therefore be subject to the Retirement Act’s provisions. In an amendment to their complaint, plaintiffs alleged that Judge Maddux intends to run for retention should the Act be invalidated, but will not run in a contested election should the Act be upheld.

The circuit court issued a memorandum opinion and order granting the defendants’ motions to dismiss and denying plaintiffs’ motion for summary judgment. The court dismissed the case in its entirety with regard to all defendants. In so doing, the circuit court correctly recognized that it was bound to accept the interpretation placed on the Retirement Act by the First District’s decision in Anagnost v. Layhe, 230 Ill. App. 3d 540 (1992). That decision construed the Retirement Act as barring a judge from seeking retention after the expiration of the term in which the judge attained the age of 75, but permitting him or her to run for judicial office in contested elections no matter how old he or she may be. The circuit court believed that the text and history of the judicial article of the Illinois Constitution supported the constitutionality of the Act as interpreted by Anagnost. It therefore rejected the claim that the Retirement Act had modified the retention process in a manner not authorized by our state’s constitution.

Plaintiffs appealed. After the matter was docketed in the appellate court, plaintiffs moved to transfer the cause to our court pursuant to Supreme Court Rule 302(b) (210 Ill. 2d R. 302(b)) on the grounds that the public interest required prompt adjudication by this tribunal. We granted plaintiffs’ motion.

Here, as in the circuit court, the central issue is whether the Retirement Act is unconstitutional because it exceeds the authority given to the General Assembly by the Illinois Constitution to prescribe a retirement age for judges. The standards governing our review are familiar. The constitutionality of a statute is a question of law we review de novo. Illinois State Chamber of Commerce v. Filan, 216 Ill. 2d 653, 661 (2005). All statutes carry a strong presumption of constitutionality, and it is the burden of the party challenging the statute to rebut that presumption and to establish a constitutional violation. Filan, 216 Ill. 2d at 661; Flynn v. Ryan, 199 Ill. 2d 430, 436 (2002). Moreover, it is the duty of a court to construe a statute in a manner upholding its constitutionality, if such construction is reasonably possible. People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 120 (2001).

Plaintiffs first contend that the Illinois Constitution does not authorize the General Assembly to fix a mandatory retirement age in any form. This contention is patently without merit. Article VI, section 15(a), of the Illinois Constitution expressly states that “[t]he General Assembly may provide by law for the retirement of Judges and Associate Judges at a prescribed age.” Ill. Const. 1970, art. VI (1964), § 15(a).

Citing the provision’s use of the phrase “may provide,” plaintiffs make the claim that the retirement allowed by the constitution is meant to be discretionary with the judge and that the mention of the age of 75 in the statute is merely a suggested retirement age. This argument is untenable. By the clear and unambiguous terms of article VI, section 15(a), the discretion conferred through the phrase “may provide” rests not with the judge, but rather with General Assembly, which is allowed the option of whether or not to enact a law establishing a prescribed retirement age. As the provision plainly states, it is the “General Assembly [that] may provide” for judicial retirement at a prescribed age. (Emphasis added.) Ill. Const. 1970, art. VI, §15(a).

Even if one could legitimately argue that the language of section 15(a) of the judicial article is ambiguous as to whether it allows for mandatory retirement, any such ambiguity is eliminated when one considers the circumstances surrounding its inclusion in the 1970 constitution. The authority to set a retirement age was initially incorporated into the Illinois Constitution of 1870 by way of an amendment that became effective January 1, 1964. Ill. Const. 1870, art. VI (1964), §18. The text of the 1964 constitutional amendment read as follows: “Notwithstanding the provisions of this Article relating to terms of office, the General Assembly may provide by law for the retirement of judges automatically at a prescribed age ***.” (Emphasis added.) Ill. Const. 1870, art. VI (1964), §18. Our court considered this amendment in Cusack v. Howlett, 44 Ill. 2d 233, 244 (1969), and construed it as granting the General Assembly “authority *** to *** fix[ ] *** a mandatory retirement age for judges.” In 1965, the General Assembly exercised its authority under this constitutional provision and enacted a statute that provided that a judge is “automatically retired” on the first Mionday of December following the general election after he has attained the age of 70. Ill. Rev. Stat. 1965, ch. 37, par. 23.71.

The delegates to the 1970 constitutional convention were aware of the then-existing constitutional provision. They also knew that the legislature had exercised its authority in connection with that provision and that our court had interpreted the provision as allowing the General Assembly to enact a statute prescribing a mandatory retirement age. See 2 Record of Proceedings, Sixth Illinois Constitutional Convention 1089 (hereinafter, Proceedings) (statements of Delegate Rachunas, noting the existence of section 18 of the judicial article of the 1964 amendment to the 1870 constitution and that the proposal for the 1970 constitution “deals with the automatic retirement for age and temporary recall to service. *** Also *** the General Assembly has already risen to the cause and provided for the retirement of judges at the age of seventy”). The delegates did not intend any substantive changes from the 1870 to the 1970 constitution with respect to mandatory retirement. The word “automatically” was removed from the final draft of the 1970 constitution by the Committee on Style, Drafting and Submission because it concluded that the removed language was “unnecessary.” 6 Proceedings 3958 (statements of Delegate Whalen). Style deletions effected by this committee, which was not concerned with the substantive elements of the law but only the style of the language, should not be interpreted so as to thwart the obvious intent of the drafters. Thies v. State Board of Elections, 124 Ill. 2d 317, 323 (1988). Accordingly, there can be no real question that our current constitution does allow the legislature to prescribe mandatory retirement for judges.

Plaintiffs suggest that sections 15(b) and (c) of the judicial article, which establish procedures for removing judges for misconduct or physical or mental incapacity, support their claim that section 15(a) does not allow for mandatory retirement. Plaintiffs believe that because there is an avenue for removing a mentally or physically infirm judge, mandatory retirement is not needed and was not contemplated. The problem with plaintiffs’ suggestion is that removal for cause and mandatory retirement are not mutually exclusive. There is simply no reason to believe that because the drafters of the constitution provided a mechanism for removing unqualified judges, they did not also intend to allow the General Assembly to establish a mandatory retirement age.

Plaintiffs next argue that, assuming the legislature is constitutionally allowed to prescribe a mandatory retirement age, this was not done by the current statute because it does not set a specific age, but allows the judge who reaches 75 to finish out his or her term. A similar argument was rejected by the Seventh Circuit Court of Appeals in Trafelet v. Thompson, 594 F.2d 623, 627, 631 (7th Cir. 1979). There, the court considered whether section 2 of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 23.72), which has since been deleted, violated article VI, section 15(a), of the Illinois Constitution (Ill. Const. 1970, art. VI, §15(a)) by failing to prescribe a single age at which judges must retire. Section 2 contained a grandfather clause that allowed judges in certain circumstances to serve long enough past the age of 70 to secure pension rights. Ill. Rev. Stat. 1977, ch. 37, par. 23.72. The court found that section 2 was not inconsistent with the Illinois Constitution because “[t]he Act does provide a prescribed age for retirement in [section] 1,” and the framers were aware of section 2’s existence at the time the 1970 constitution was adopted. Trafelet, 594 F.2d at 631.

Because lower federal courts exercise no appellate jurisdiction over state courts, decisions of lower federal courts are not conclusive on state courts, except insofar as the decision of the lower federal court may become the law of the case. People v. Kokoraleis, 132 Ill. 2d 235, 293-94 (1989). While the Seventh Circuit’s decision in Trafelet is therefore not binding on this tribunal, I believe its rationale is persuasive and should be followed.

Correspondingly, I find plaintiffs’ reading of the authority to set a retirement age is too narrow. The General Assembly has taken a reasonable approach in allowing judges to finish out their terms rather than set a hard date of the judge’s seventy-fifth birthday of stepping down. The statute is not rendered unconstitutional simply because it is more favorable than it has to be in allowing judges to finish out their terms upon reaching the age of 75.

Because the Illinois Constitution allows the General Assembly to prescribe mandatory retirement and because the statute currently in effect does prescribe a mandatory retirement age, it is necessary to address the crux of plaintiffs’ constitutional challenge. Plaintiffs claim that the Retirement Act exceeds the authority of section 15(a) of the judicial article to compel retirement because the interpretation placed on the Act in Anagnost v. Layhe, 230 Ill. App. 3d 540 (1992), allows a 75-or-over judge to run in a contested election, but not for retention. In plaintiffs’ view, the statute is therefore not a retirement statute at all, but merely an antiretention provision. Relying upon People ex rel. Nachman v. Carpentier, 30 Ill. 2d 475 (1964), plaintiffs claim that the Act, as interpreted, places an improper condition on the right of a sitting judge to seek retention as set forth in section 12(d) of the judicial article. In response, the Attorney General argues on behalf of defendants that the Act can reasonably be interpreted to mean that judges cannot run for retention if they reach 75, but that they can run for an open judicial seat in a contested election. Both sides rely upon the judicial interpretation placed on the Act by Anagnost to support their respective positions.

The petitioner in Anagnost was a 78-year-old licensed attorney who sought the Republican nomination to the office of supreme court justice. His nominating petitions were challenged based on the claim that he was ineligible for office under the Retirement Act. The petitioner responded by challenging the constitutionality of the Act and claiming that the legislature had no constitutional authority to prohibit persons 75 years of age or older from running for judicial office. The appellate court believed that a difficult constitutional question was presented. On the one hand, it acknowledged the long line of authority that prevents the legislature from adding to qualifications for judicial office, which are specified in section 11 of article VI (Ill. Const. 1970, art. VI, §11).19 On the other hand, it observed that section 15(a) of article VI expressly authorized the legislature to fix a mandatory retirement age for judges. The court opined that the foregoing provisions are not mutually exclusive, but rather must be read together as a rational plan for the regulation of this state’s judiciary. Anagnost v. Layhe, 230 Ill. App. 3d at 543. It ultimately avoided finding any constitutional infirmity with the Retirement Act by limiting its applicability to retention of sitting judges. After noting distinctions drawn during floor debates on the statute between the dynamics of partisan elections and those of retention elections, the court concluded that the Act did not bar “a person over the age of 75 and otherwise qualified to serve as a judge from running in a judicial election.” Anagnost, 230 Ill. App. 3d at 544.

The decision in Anagnost was not unanimous. A dissenting justice observed that the majority’s holding “effectively is that a judge may seek election while beyond retirement age but not retention.” Anagnost, 230 Ill. App. 3d at 546 (Jiganti, J., dissenting). The dissent further noted that while there arguably may be a difference between seeking election and seeking retention, the holding that a judge beyond retirement age may seek election but not retention brings about an absurd result. Anagnost, 230 Ill. App. 3d at 546 (Jiganti, J., dissenting).

In the nearly 17 years since Anagnost was decided, the General Assembly has chosen not to amend the Retirement Act to provide for a different scheme from the one resulting from the Anagnost court’s construction of the law. Where the legislature chooses not to amend a statute to supercede the judicial gloss placed on it by a court’s construction of it, the presumption is that the legislature has acquiesced in the court’s understanding of legislative intent. People v. Coleman, 227 Ill. 2d 426, 438 (2008). I further note, as the majority did in Anagnost, that there is language in the legislative debates to support the notion that the legislature intended a difference between the contested election of judges and the retention process whereby a sitting judge runs unopposed for his own seat. Representative John J. Cullerton, in speaking on behalf of the last amendment to the Retirement Act before Anagnost, stated that “ ‘since the public elects judges, they know or have the ability to find out what the age of a judge is, and so when they make that decision and elect that judge, that judge should be allowed to fill out his or her term, since that is what the people intended when they elected he or she.’ ” Anagnost, 230 Ill. App. 3d at 543-44, quoting 85th Ill. Gen. Assem., House Proceedings, November 16, 1988, at 44 (statements of Representative Cullerton).

As I have indicated, Anagnost’s construction of the law enabled the court to avoid a constitutional question. This enhances, rather than diminishes, its precedential value. As we have often held, courts are required to interpret statutes in such a manner so as to avoid raising constitutional questions when it is possible to do so. Villegas v. Board of Fire & Police Commissioners, 167 Ill. 2d 108, 124 (1995).

Contrary to plaintiffs’ view, I do not believe that the Retirement Act can be dismissed as being merely an antiretention statute rather than a true retirement statute. The current Illinois scheme requires a sitting judge 75- or-over to essentially withdraw from office by barring his running for retention to that office. This is consistent with the commonly understood meaning of “retirement,” which is defined as a “withdrawal from office, active service, or business.” Webster’s Third New International Dictionary 1939 (1993). In this regard, the 75-or-over judge is required to retire by withdrawing from his present office and active service at the conclusion of his term. He cannot succeed himself to his office. That another, more arduous mode exists where a judge may seek elected office as a judge by way of a contested election and essentially start his career over like any other citizen who would like to run for judicial office does not make the statute any less of a compulsory retirement statute.

A judicial candidate is open to much greater public scrutiny in a contested election. The voters can more readily observe the candidate and distinguish him from his adversary. In contrast, in a retention election, the candidate’s name simply appears on a long list without an opponent. Many sitting judges 75-or-over would likely conclude, as Judge Maddux has, that the effort and expense required to run in a contested election are more than they are willing to undertake. Under these circumstances, the legislature could certainly have concluded that the number of judges 75-or-over who would want to run in contested elections would be negligible, that barring retention would result in permanent retirement in most cases,20 and that the rigors of running in contested primary and general elections would help ensure that any judge who did elect to run rather than retire would possess the stamina and ability to fulfill the requirements for office. A statute that allows 75-year-old-or-older persons to run for judicial office, but prohibits them from succeeding themselves through retention, is therefore entirely rational and is a true retirement statute consistent with the constitutional delegation of authority to “provide by law for the retirement of Judges *** at a prescribed age.” Ill. Const. 1970, art. VI, §15(a).

Plaintiffs’ reliance upon People ex rel. Nachman v. Carpentier, 30 Ill. 2d 475 (1964), is misplaced. In Nachman, the statute in question prevented a sitting judge from running for retention while also accepting a nomination for another judicial office. Under the statute, when receiving a nomination to a different judicial office than the one the judge held, the judge was required to withdraw his declaration of candidacy for the retention election or “be deemed” to have resigned his office. Nachman, 30 Ill. 2d at 476. Nachman held that the legislature “may not impose the condition in question upon the constitutionally unqualified right of a previously elected judge to seek retention of his office.” Nachman, 30 Ill. 2d at 478. In reaching this conclusion, this court first scrutinized those constitutional provisions that conferred authority on the legislature. This court specifically listed the authority to “fix a judicial retirement age” as being among the provisions that gave power to the legislature to act. Nachman, 30 Ill. 2d at 477. Finding no constitutional authority that would bar retention in the context before it, however, Nachman held that the legislative enactment barring retention while seeking nomination for another judicial office was invalid. Nachman, 30 Ill. 2d at 478.

Nachman is easily distinguishable from the present case. What sets the Retirement Act apart from the statute in Nachman is the express grant of authority found in section 15(a) of article VI to set a mandatory retirement age. This distinction is in line with the well-established case law that holds that “the legislature is without authority to change or add to the qualifications [for office] unless the Constitution gives it the power” (Emphasis added.) Thies v. State Board of Elections, 124 Ill. 2d 317, 325 (1988); see also Cusack v. Howlett, 44 Ill. 2d 233, 244 (1969) (“fixing *** a mandatory retirement age for judges” is a power granted to the legislature under section 15 of the judicial article); People ex rel. Hoyne v. McCormick, 261 Ill. 413, 419-20 (1913) (legislature could not validly enact law that required person running for county commissioner to reside in this state for five years preceding the election where the constitution contained only a one-year residency requirement).

Plaintiffs rely upon section 12(d) of the judicial article to support their claim that Judge Maddux has a right to run for retention. That section provides that a judge who has been elected to the bench may file a declaration of candidacy to succeed himself and that the Secretary of State shall certify the judge’s candidacy for a retention election. Ill. Const. 1970, art. VI, § 12(d). Plaintiffs’ argument must be rejected, however, because it lacks the proper context and it ignores other key provisions of section 12 of the judicial article. Under section 12(d), when a judge runs for retention, he is running for his own office “to succeed himself.” Ill. Const. 1970, art. VI, § 12(d). Section 12(b) of the same article provides, on the other hand, that a judge’s office “shall be vacant upon his *** retirement.” Ill. Const. 1970, art. VI, § 12(b). Section 12(c) in turn provides that a vacancy in the office of judge shall be filled as the General Assembly may provide by law or, in the absence of law, by supreme court appointment. Ill. Const. 1970, art. VI, § 12(c); see, e.g., Tully v. State of Illinois, 143 Ill. 2d 425 (1991) (noting that a seat becomes vacant upon compulsory retirement by the interaction of section 12(c) of the judicial article and the Retirement Act and holding that laches barred the judge from challenging others who ran in a contested election for the “vacant office”). From the foregoing, it is clear that the constitutional and legislative scheme, at the very least, is designed to prevent a sitting judge who reaches the age of 75 from running for retention to his own office. Such a judge cannot run for retention “to succeed himself” because his office is deemed “vacant” upon the expiration of his term at his retirement. Such vacancies are to be filled as the General Assembly may provide by law or by supreme court appointment. There is nothing in the Illinois Constitution that allows a judicial office that will be deemed “vacant” to be filled by retention. Contrary to plaintiffs’ suggestion, section 12(d) of the judicial article is not violated, or even implicated, because that section establishes the qualifications for judges seeking to retain offices that will not be deemed vacant due to “retirement.”

Even if the constitutional provisions in sections 12(d) and 15(a) could somehow be said to conflict, I believe that they would have to be read in harmony with the overriding intent of the drafters and delegates of the constitutional convention to allow the General Assembly to establish mandatory retirement for judges. Constitutional provisions that govern a particular subject should not be viewed in isolation, but instead should be read as a rational plan for the regulation of the state’s judiciary. See Thies, 124 Ill. 2d at 323; Anagnost, 230 Ill. App. 3d at 542.

Plaintiffs’ final argument on appeal is that the Retirement Act is vague and therefore violates the due process clauses of the United States and Illinois Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2. Plaintiffs contend that the Act is vague because under the interpretation placed upon it in Anagnost, a judge 75-or-over can run in a contested election. According to plaintiffs, a person of ordinary intelligence would not understand that the Act “is not a ‘retirement’ act at all.”

Void for vagueness is a concept derived from the notice requirement of the due process clause. A statute can be impermissibly vague for either of two independent reasons: (1) if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; and (2) if it authorizes or even encourages arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732, 147 L. Ed. 2d 597, 621, 120 S. Ct. 2480, 2498 (2000); see also People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 124 (2001). As a general rule, a litigant whose conduct falls squarely within a statute’s prohibition cannot complain of the vagueness of the law as applied to others. City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 442 (2006). Moreover, in order to succeed on a vagueness challenge that does not involve a first amendment right, a party must establish that the statute is vague as applied to the conduct for which the party is being prosecuted. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 291 (2003).

For reasons already discussed, I reject plaintiffs’ claim that there is no retirement under the Act when applying the Anagnost interpretation. I would now further hold that plaintiffs have not satisfied either prong of Hill for establishing a vagueness claim. Within the context of the statute, the meaning of automatic retirement is clear. A judge is retired at the end of the term in which he or she turns 75 years old. Retention is not an option. The fact that another, more difficult course exists for continued judicial service does not make the meaning of the provisions ambiguous.

Furthermore, the vagueness of which plaintiffs complain — that the Act does not bar running in a contested election — is irrelevant in this case because Judge Maddux has specifically pleaded that he does not intend to run in a contested election. He has also acknowledged that the statute applies to the conduct he intends to engage in — running for retention. As a result, there is nothing unclear about it as applied to him. See Pooh Bah Enterprises, Inc., 224 Ill. 2d at 444-45 (rejecting vagueness challenge because even though there might be circumstances where the meaning could be vague, such circumstances were not present there). I note, moreover, that the statute has now been in place for 44 years and the Anagnost interpretation in place for nearly 17 years, yet plaintiffs have not alleged anything specific to suggest that there has been any trouble in understanding or applying the statute. Under these circumstances, I would conclude that the Retirement Act is not unconstitutionally vague.

In declaring the Retirement Act invalid, the majority relies on equal protection principles. What my colleagues fail to mention is that plaintiffs themselves did not raise an equal protection challenge to the law in the circuit court, nor has an equal protection argument been raised by any party on appeal. The issue is therefore not properly before us. People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 190 (2009). Indeed, for the majority to raise the issue sua sponte directly conflicts with the court’s obligation to uphold the constitutionality of a statute whenever it is reasonably possible to do so. See Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306-07 (2008).

Because the equal protection argument is not properly before us, I hesitate to address the equal protection claim fashioned by my colleagues. I feel compelled to note, however, that the majority’s equal protection concerns are misguided. As a preliminary matter, I am not persuaded that the Retirement Act would necessarily result in disparate treatment of former judges who have turned 75 within their terms. In accordance with the principle that we must construe a statute to uphold its validity whenever it is reasonably possible to do so, the Retirement Act should be read as precluding any judge who attains or has attained the age of 75 from seeking retention. Under that construction, judges who turn 75 while still in office are in precisely the same position as individuals who seek judicial office for the first time after attaining the age of 75 or judges who retired prior to turning 75 and then decided to seek judicial office again. In every case, the judge will still be permitted to seek and hold judicial office. He or she must simply do so by means of a contested election. The number of times the judge may seek office through such elections is unlimited.

Even if one is unwilling to accept this construction of the Retirement Act, the majority’s equal protection theory would fail. Age is not a suspect classification under the equal protection clause. Arvia v. Madigan, 209 Ill. 2d 520, 538 (2004). Where, as in this case, a classification burdens neither a suspect group nor a fundamental interest, courts are “ ‘quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws.’ ” Gregory v. Ashcroft, 501 U.S. 452, 470-71, 115 L. Ed. 2d 410, 430, 111 S. Ct. 2395, 2406 (1991), quoting Vance v. Bradley, 440 U.S. 93, 97, 59 L. Ed. 2d 171, 176, 99 S. Ct. 939, 942 (1979). A classification will be upheld so long as the state can assert a rational basis for it. Gregory v. Ashcroft, 501 U.S. at 470-71, 115 L. Ed. 2d at 430, 111 S. Ct. at 2406. The standard is deferential. That is particularly so where the classification relates to matters falling within a state’s constitutional prerogatives. Indeed, the United States Supreme Court has specifically held that the states’ power to define the qualifications of their officeholders has force even as against the proscriptions of the fourteenth amendment. Gregory v. Ashcroft, 501 U.S. at 469, 115 L. Ed. 2d at 429, 111 S. Ct. at 2405.

Under a rational basis standard, a classification established by the state is not fatally infirm merely because it may be somewhat underinclusive or overclusive. Neither perfection nor mathematical nicety are required. Vance v. Bradley, 440 U.S. 93, 108, 59 L. Ed. 2d 171, 183, 99 S. Ct. 939, 948 (1979). Moreover, a law does not offend equal protection just because the legislature could have proceeded farther than it did. A legislature “ ‘need not “strike at all evils at the same time,” [citation] and *** “reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,” [citation].’ ” City of New Orleans v. Dukes, 427 U.S. 297, 305, 49 L. Ed. 2d 511, 518, 96 S. Ct. 2513, 2518 (1976).

In this case, the legislature could certainly have assumed that focusing on judges currently in office was the most effective way to meet the objectives it hoped to advance through mandatory retirement rules. While some persons who have passed the age of 75 may seek judicial office for the first time or, having previously held judicial office when they turned 75, may seek to return to office through a contested election, the number of such persons is likely to be small, their chances of success are remote, and the likelihood that they would want to remain in office after completing their first post-seventy-fifth birthday term is negligible. The mere theoretical possibility that such individuals may exist and could potentially end up being treated more favorably than judges who are precluded from seeking retention under the Retirement Act’s provisions, as construed by the majority, cannot work to render the law invalid.

Finally, there is no merit whatever to the majority’s perception that a conflict exists between article VI, section 11, of the Illinois Constitution (Ill. Const. 1970, art. VI, §11), which sets forth the eligibility for judicial office, and article VI, section 15(a) (Ill. Const. 1970, art. VI, §15), which pertains to retirement of judges. The focus of article 11 is the qualifications one must possess to become a judge. Article 15(a), by contrast, concerns when a person already a judge may be required to leave judicial office through retirement. These are obviously separate and distinct issues.

The only way article VI, section 15(a), could be viewed as impinging on article VI, section 11, is if the eligibility factors set forth under section 11 were deemed to preclude any further restrictions on when one may continue to hold judicial office. There is, however, no principle of law that would support such a construction. To the contrary, it violates the well-established principle that

“[i]f different parts of the constitution appear to be in conflict, the court must harmonize them, if practicable, and must favor a construction which will render every word operative rather than one which will make some words idle and nugatory. (1 Cooley’s Constitutional Limitations 128 (8th ed. 1927); 2 J. Sutherland, Statutes and Statutory Construction, sec. 4705 (3d ed. 1943).) One clause will not be allowed to defeat another if by any reasonable construction the two can be made to stand together. 1 Cooley’s Constitutional Limitations 129 (8th ed. 1927).” Oak Park Federal Savings & Loan Ass’n v. Village of Oak Park, 54 Ill. 2d 200, 203 (1973).

Such a construction would also lead to an absurd result, for if section 11 contains the exclusive list of eligibility criteria for judicial office, trumping the retirement provisions in section 15(a), it must likewise trump the provisions in section 15 dealing with the discipline or removal from office of judges suffering from mental or physical infirmities which render them unfit to perform their duties or who have engaged in misconduct prejudicial to the administration of justice or which brought the judicial office into disrepute. This surely is not what the drafters intended or what the people of this state expected when they adopted the judicial article of our constitution.

There is likewise no merit to the majority’s suggestion that section 11 of the judicial article somehow constrains the General Assembly’s discretion in enacting judicial retirement legislation linked to a judge’s age. As just discussed, section 11 pertains to the qualifications one must possess to become a judge. It does not address when one can be required to leave office through retirement or disability or as a result of misconduct. That is the subject of section 15, which expressly authorizes the General Assembly to provide by law for the retirement of judges at a prescribed age. Similarly, to the extent that any conflict exists between the Retirement Act and section 11 of the constitution, the conflict does not render the Act invalid. That is so because, as this court has previously held, the General Assembly may add to or alter the qualifications for office, even where those qualifications have been established by the constitution, where, as here, the constitution has given it the power to do so. See O’Brien v. White, 219 Ill. 2d 86, 100 (2006), citing Thies v. State Board of Elections, 124 Ill. 2d 317, 325-26 (1988).

For the foregoing reasons, the circuit court of Cook County reached the correct result when it upheld the constitutionality of the Retirement Act. Its judgment should therefore be affirmed. Because my colleagues reach a contrary conclusion, I respectfully dissent.

JUSTICE GARMAN joins in this dissent.

The complaint actually alleged that Judge Maddux was retained in 1996 and 2002, but this was obviously an error. The correct years, noted here, were obtained from this court’s own records, of which we may take judicial notice.

This section of the judicial article provides in relevant part that “[n]o person shall be eligible to be a Judge *** unless he is a United States citizen, a licensed attorney-at-law of this State, and a resident of the unit which selects him.”

Uncontested information provided by the Attorney General supports this assumption. It shows that no person 75 years of age or older has ever been elected to the office of judge.