The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site -



Opinion No. 5177

April 5, 1977


Art 6, Sec. 19


Election or appointment after age 70


Mandatory retirement

Const 1963, art 6, Sec. 19 which prohibits the election or appointment of a person to judicial office after reaching age 70 does not violate the equal protection clause of the United States Constitution and is, therefore, valid.

Honorable Harold J. Smith

Judge of Probate

Branch County Courthouse

Coldwater, Michigan 49036

You have asked for my opinion regarding mandatory retirement of judges pursuant to Const 1963, art 6, Sec. 19, which states in part:

'No person shall be elected or appointed to a judicial office after reaching the age of 70 years.' (1)

Pertinent to your inquiry is the Fourteenth Amendment to the United States Constitution, which decrees in part:

'. . . 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 law.' US Const, AM XIV

The United States Supreme Court has developed a two-tiered approach to equal protection cases.

If the interest is 'fundamental' or the classification 'suspect,' the Court applies a 'strict scrutiny' test requiring the state to show a 'compelling' interest which justifies the classification. Rarely have courts sustained legislation subjected to this standard of review.

Other legislation and constitutional provisions are subjected to review under the traditional equal protection test. The burden is on the person challenging the classification to show that it is without reasonable justification. The traditional equal protection test in Michigan is set forth in Naudzius v Lahr, 253 Mich 216, 222, 223; 234 NW 581, 583 (1931), as follows:

"1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.' Lindsley v Natural Carbonic Gas Co., 220 US 61, 78; 31 S Ct 337, 340; 55 L Ed 369, 377 (1911).'

While there are no Michigan cases on point, courts in other states and the federal courts have considered the constitutionality of mandatory retirement.

In Aronstam v Cashman, 325 A2d 361 (Vt, 1974), two assistant judges, both over 70 years of age, attacked the mandatory retirement age of 70 for assistant judges. They maintained that this classification based upon age was one involving a suspect criterion and affected a fundamental right, claiming that only promotion of a compelling state interest would justify it. The appellate court pointed out that the threshold inquiry was two-pronged: What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger? It held that there was a legitimate state interest in requiring for members of the judiciary the highest possible standards obtainable by minimizing as far as possible the threat of an obviously disabled judge continuing to preside. Also, no violation of recognized fundamental personal right had been demonstrated. It, therefore, concluded that mandatory retirement age did not violate constitutional requirements. And see Weiss v Walsh, 324 F Supp 75 (SD NY, 1971);, aff'd 461 F2d 846 (CA2, 1971), cert den, 409 US 1129; 93 S Ct 939; 35 L Ed 2d 262 (1973).

Federal courts have uniformly upheld mandatory retirement statutes and constitutional provisions. See, e.g., Retail Clerks U, Local 770 v Retail Clerks Int Ass'n, 359 F Supp 1285 (CD Calif, 1973); Lewis v Tuscon School District No 1, 23 Ariz App 154; 531 P2d 199 (1975); Armstrong v Howell, 371 F Supp 48 (DC Neb, 1974); Weiss v Walsh, supra; Weisbrod v Lynn, 383 F Supp 933 (DC DC, 1974), aff'g 420 US 940; 95 S Ct 1319; 43 L Ed 2d 420 (1975).

In Rubino v Ghezzi, 512 F2d 431 (CA2, 1975), cert den, 423 US 891 (1975), the Court held that the issue of age restrictions upon the term of office of New York State judges was properly one for the legislative process of that state. The claim that a mandatory retirement age of 70 for state judges violated the due process and equal protection clauses was held to be insubstantial.

The Court said:

'We do not deem age to be a suspect classification requiring any strict scrutiny of the state's scheme of age restrictions upon judicial terms of office. . . . It would appear that without question the state could rationally determine that, in the interests of judicial efficiency and the encouragement of younger attorneys with judicial aspirations, a mandatory age limitation of 70 for inferior court judges was reasonable.' (emphasis added) Rubino v Ghezzi, supra, 512 F2d at 433

Finally, in a recent decision, the United States Supreme Court by a per curiam decision, in Massachusetts Board of Retirement v Murgia, ---- US ----; 96 S Ct 2562; 49 L Ed 2d 520 (1976), upheld the constitutionality of a Massachusetts statute which provided that upon reaching age 50 the members of the uniformed state police would be mandatorily retired. The Court agreed with the District Court that the proper standard by which the statute should be tested, in light of the equal protection argument, would be that of rational basis. The Court stated:

'This Court's decisions give no support to the proposition that a right of governmental employment per se is fundamental. . . . Accordingly, we have expressly stated that a standard less than strict scrutiny has consistently been applied to state legislation restricting the ability of employment opportunities.' Massachusetts Board of Retirement v Murgia, supra, ---- US at ----; 96 S Ct at 2566; 49 L Ed 2d at 524

However, in applying the test, the Court reversed the lower court's decision that the classification failed to relate to a valid state interest, and the mandatory retirement statute as applied to the state police was found to satisfy the rational basis test. The state's purpose of protecting the public by assuming that the uniformed police were physically able to perform their duties is rationally related to the statute.

The Court commented:

'We do not make light of the substantial economic and psychological effect premature and compulsory retirement can have on an individual; nor do we denigrate the ability of elderly citizens to continue to contribute to society. The problems of retirement have been well documented and are beyond serious dispute. . . . We decide only that the system enacted by the Massachusetts Legislature does not deny appellee equal protection of the law.' Massachusetts Board of Retirement v Murgia, supra, ---- US at ----; 96 S Ct at 2568; 49 L Ed 2d at 527

Accordingly, it is my opinion that Const 1963, art 6, Sec. 19 is not violative of the equal protection under the Fourteenth Amendment of the United States Constitution.

Frank J. Kelley

Attorney General

(1) Although no person may be elected or appointed to a judicial office who at the time of election or appointment is 70 years or older, it is possible, however, for a probate judge and circuit judge to sever until he or she reaches the age of 75 years and a supreme court judge to serve until he or she reaches the age of 77 years. See II OAG, 1956, No 2735, p 636 (October 30, 1956), and Const 1963, art 6, Secs. 2, 12, 16.