HMOND COUNT uN Sy SUPREME COURT OF THE STATE OF NEW YORK TWN 28 AT COUNTY OF RICHMOND r OFFICIAL > FRANK MORANO, as Chair of the Interim County Index No.: (0 0$5 / \ Organization of the Reform Party for the County of Richmond: and as Secretary of the State Committee Date Purchased: (, (24 (} of the Reform Party of the State of New York, INTERIM COUNTY ORGANIZATION OF VERIFIED PETITION THE REFORM PARTY FOR THE COUNTY OF UNDER ARTICLE 16 OF RICHMOND, and the STATE COMMITTEE OF THE THE ELECTION LAW REFORM PARTY OF THE STATE OF NEW YORK, Petitioners, -against- THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK, NEW YORK STATE BOARD OF ELECTIONS, THE CITY OF NEW YORK, ERIC T. SCHNEIDERMAN, as Attorney General of the State of New York, CURTIS SLIWA, Respondents, xX Petitioners, by way of their Verified Complaint, respectfully allege: PRELIMINARY STATEMENT 1. At the core of this Petition is the treatment of the immutable quality of age and age-based discrimination under the New York State Constitution." i the legal arguments formulated as the gravamen of this Petition are only possible because of the legal scholarship of Nina A. Kohn, Esq,, the David M. Levy Professor of Law and Associate Dean for Research at Syracuse University College of Law, and a faculty affiliate with the Syracuse University Aging Studies Institute. The undersigned has consulted much of Professor Kohn’s work, with the Professor's Rethinking the Constitutionality of Age Discrimination: A Challenge to a Decades Old Consensus, 44 U.C. Davis Law Review 213 (2010) ("KOHN L. Rev.", a copy of which is attached hereto 36 EXHIBIT “A”), remaining seminal to the arguments presented herein and in support of the Petition2 On Election Night, November 8, 2016, and late into the moming of November 9, 2016, the People of the United States and New Yorkers were shocked? when one of their own became the President-Elect of the United States. However, a little followed race for the Public Office of Judge of the Civil Court - District 2nd Municipal Court District - Richmond County, also took place on 2016 Election Day. And by Election Night, it was clear® that the sitting Presiding Judge for the New York City Civil Court, PHILIP S STRANIERE (hereinafter referred to as “Judge Straniere’), had been re-elected to a new TEN (10) YEAR TERM. See a copy of the Certified Election Results for said Election as published by the Respondent Board of Elections in the City of New York ("NYCBOE"), attached hereto as EXHIBIT “B”, 3. A Designation of Vacancies for Judge of the Civil Court of the City of New York Pursuant to § 6-168 of the Election Law for the September 12, 2017, Primary Election, was prepared and issued by the Respondent NYCBOE on April 19, 2017 (‘Designation of Vacancies’). A copy of the same is attached herewith as EXHIBIT “C”. 4. tis this Designation of Vacancies, prepared and issued by the Respondent NYCBOE on April 19, 2017, as applied to Judge Straniere as a member of a class of elected and otherwise qualified jurists being improperly removed from the bench solely ‘on the basis of the immutable quality of age, that is squarely at issue in this Petition ? Admittedly, not too shocked that a New Yorker became President Elect, as both major National Political Party candidates in the 2016 Presidential Election hailed from the Empire State. * If not before, as Philip S. Straniere was the ONLY CANDIDATE that appeared on the ballot for the Public Office of Judge of the Civil Court - District 2nd Municipal Court District — Richmond County, cross-endorsed by all Party Lines that put up a candidate in that race.5. Petitioners, FRANK MORANO (‘MORANO”) as Chair of the Richmond County Organization of the New York State Reform Party (‘Richmond County Organization’), and as Secretary of the State Committee of the New York State Reform Party (‘Reform Party’), brings this action under § 16-100 and § 16-102 of the Election Law, seeking immediate and emergency determination and relief requested. The question at issue is whether the Designation of Vacancies, prepared and issued by the Respondent NYCBOE on April 19, 2017, declaring Judge Straniere's Judicial Seat an “Open Seat” for the purposes of the September 12, 2017 Primary Elections was in error. 8. The Richmond County Organization of the Reform Party challenges the Designation of Vacancies issued by the NYCBOE, as said Designation of Vacancies applies to Judge Straniere's seat, and asks this Court to declare the same improper, invalid, null, void, incorrect, and without legal effect. 7. The Richmond County Organization of the Reform Party challenges the Designation of Vacancies issued by the NYCBOE, as said Designation of Vacancies applies to Judge Straniere’s seat, and asks this Court to declare the announced Primary Election, now noticed for September 12, 2017, as similarly improper, invalid, null, void, incorrect, and without legal effect. 8. The Richmond County Organization of the Reform Party further asks the Court to temporarily, preliminarily, and permanently restrain the Primary Election, now designated for September 12, 2017, Public Office of Judge of the Civil Court - District 2nd Municipal Court District — Richmond County, from going forward. 9. The Richmond County Organization of the Reform Party believes that since Judge Straniere was elected to a TEN (10) YEAR TERM on November 8, 2016, that theDesignation of Vacancies as applied to Judge Straniere is improper, invalid, null, void, incorrect, and without legal effect. 10. The Richmond County Organization of the Reform Party further believes that since Judge Straniere was elected to a TEN (10) YEAR TERM on November 8, 2016, and is otherwise qualified to serve in his Elected Public Office but for his classification based solely upon the immutable characteristic of his age, that the Designation of Vacancies as applied to Judge Straniere is improper, invalid, null, void, incorrect, and without legal effect. 11. The consensus in the legal academy and in the courts is that the window of opportunity for bringing a successful equal protection challenge to age discrimination closed decades ago.‘ This Petition fundamentally challenges that conclusion in the Election Law context, as age-based discrimination with respect to the election and continued seating of popularly-elected New York City Civil Court Judges is offensive to the New York State Constitution, particularly where the values enshrined in the New York State Constitution's Bill of Rights: the Guarantee of the Franchise (Article |, § 1), the Due Process Clause (Article 1, § 6) and the Equal Protection Clause (Article | § 11); are read in conjunction with the relevant Constitutional provisions concerning the Judiciary, particularly the Judicial Qualifications Clause (Article VI, § 20), the Judicial Vacancies Clause (Article VI, § 21), and the Mandatory Judicial Retirement Clause (Article VI, § 2) 12. The Richmond County Organization of the Reform Party further believes: + Maresca v. Cuomo, 64 N.Y.2d 242, 485 N.Y.S.2d 724 (1984) (“Maresca”) 4a. That the New York State Court of Appeals has never squarely addressed the facts at issue solely under the New York State Constitution; b. That the New York State Court of Appeals has never squarely addressed the facts at issue outside the context of employment and under the context of the Election Law and the ability of Political Parties to Designate Candidates for Public Office and to challenge an improper Designation of Vacancies; c. That the New York State Court of Appeals’ decision in Maresca is clearly distinguishable because Maresca was decided under the Federal Constitution and in the context of employment and the instant matter is brought under the Election Law and intimates the popular sovereignty and the finality of the results of elections embodied in the Guarantee of the Franchise in Article |, § 1 of the New York State Constitution's Bill of Rights, in addition to the Due Process and Equal Protection Guarantees; d. That the claim in this matter is distinguishable from the claim in Maresca, as Judge Straniere, who was just elected last year by the exercise of popular sovereignty at the voting booth, is not a party to this matter, but rather itis the Reform Party and its members, by the Chair of the Richmond County Organization, that is claiming that the Designation of Vacancies impermissibly violates the enumerated fundamental rights of the voters and party members;> § The Federal Constitution is not intimated in this case. © Where state action directly infringes upon the right to vote, the state has the burden of demonstrating that the legislation is necessary to promote a compelling state interest 5e. That Judge Straniere, as a member of a class of elected and otherwise qualified jurists being improperly removed from the bench solely on the basis of the immutable quality of age pursuant to Mandatory Judicial Retirement Clause (Article VI, § 25), should have a level of scrutiny accorded that is far greater than mere rational basis review, £ That the ambit of the class rights protected by the Equal Protection Clause in the State Constitution is greater than the minimums imposed by the Federal Constitution, as, at least in the State of New York, age is as immutable a characteristic as gender, national origin, sexual orientation, or the color of one’s skin;” g. That class of elected and otherwise qualified jurists being improperly removed from the bench solely on the basis of the immutable quality of age pursuant to Mandatory Judicial Retirement Clause (Article VI, § 25) - rests before the legisiation can be upheld as constitutional. See, e.g., Rosenstock v Scaringe, 54 A.D.2d 779, 387 N.Y.S.2d 716, 1976 N.Y. App. Div. LEXIS 14461 (N.Y. App. Div. 3d Dep't 1976), afd, 40 N.Y.2d 563, 388 N.Y.S.2d 876, 357 N.E.2d 347, 1976 N.Y. LEXIS 3040 (N.Y. 1976). 7 In determining whether New York Constitution provides greater protection for fundamental individual rights than United States Constitution, court must undertake “noninterpretive” analysis in which relevant considerations include whether right at issue has historically been afforded greater protection in New York than is presently required under federal constitution, whether right is of peculiar state or local concern, and whether state citizenry has “distinctive attitudes" toward right; in addition to noninterpretive factors, there exists practical need for federal-state uniformity as well as sometimes countervailing necessity of “bright line” test. People v Alvarez, 70 N.Y.2d 375, 521 N.Y.S.2d 212, 515 N.E.2d 898, 1987 N.Y. LEXIS 18903 (N.Y. 1987) 6upon a fundamental bias - outdated and inaccurate stereotypes - which correlate directly with the immutable trait of age at issue. h, That the Mandatory Judicial Retirement Clause (Article VI, § 25) is unconstitutional under the State Constitution under any level of scrutiny greater than rational basis review. 13. The goal of this Petition is to demonstrate the new viability of a form of legal challenge long presumed to be unproductive in the New York State Constitutional context, and ask the Court to set aside the unfounded and cavalier use of age-based classifications in this context by applying, at minimum, intermediate scrutiny to the situations of those class members - elected and otherwise qualified jurists being improperly removed from the bench solely on the basis of the immutable quality of age pursuant to Mandatory Judicial Retirement Clause (Article VI, § 25) - who are harmed by New York State's actions based upon the immutable quality of age. 14, At bottom, the question is whether the New York State Constitution's Mandatory Judicial Retirement Clause, and the Respondent NYCBOE’s consequent Designation of Vacancies as applied to Judge Straniere’s Elected Public Office, is constitutional when read in conjunction with the New York State Constitution, because of the immutable characteristic of Judge Straniere’s age, which is now above 70 years old? 15, Immediate and emergency determination and relief is requested under § 18-100 and § 16-102 of the Election Law.‘THE PARTIES 16. _ Petitioner, INTERIM COUNTY ORGANIZATION OF THE REFORM PARTY FOR THE COUNTY OF RICHMOND (the “Richmond County Organization’), is an unincorporated association existing pursuant to the laws of the State of New York. 17. Petitioner, the STATE COMMITTEE OF THE REFORM PARTY OF THE STATE OF NEW YORK (the "Reform Party") is an unincorporated association existing pursuant to the laws of the State of New York. 18. Petitioner, Reform Party is a "party" as defined in § 1-104(3) of the Election Law. 19. Petitioner FRANK MORANO (“MORANO’) is the Chair of the Richmond County Organization and State Secretary of the Party. 20. Respondent BOARD OF ELECTIONS IN THE CITY OF NEW YORK (‘NYCBOE”), pursuant to § 3-200 of the Election Law is charged with the responsibility of the supervision of the conduct of official elections held in City of New York, including those municipal elections held in the Borough of Staten Island, County of Richmond. 21. Its the Designation of Vacancies for Judge of the Civil Court of the City of New York Pursuant to § 6-168 of the Election Law for the September 12, 2017, Primary Election, was prepared and issued by the Respondent NYCBOE on April 19, 2017 (‘Designation of Vacancies’) that is squarely at issue in this Petition 22. Respondent NYCBOE is joined as a necessary party pursuant to CPLR § 4001 23. Respondent NEW YORK STATE BOARD OF ELECTIONS (‘NYSBOE”) was established in the Executive Department June 1, 1974 as a bipartisan agency vestedwith the responsibility for administration and enforcement of all laws relating to elections in New York State. The Board is also responsible for regulating disclosure and limitations of a Fair Campaign Code intended to govern campaign practices. In conducting these wide-ranging responsibilities, the Board offers assistance to local election boards and investigates complaints of possible statutory violations. In addition to the regulatory and enforcement responsibilities the board is charged with the preservation of citizen confidence in the democratic process and enhancement in voter participation in elections. 24. Respondent NYSBOE is a branch of the Executive Department of the State of New York having jurisdiction over, and responsibility for, inter alia, the enforcement of the statutes governing elections and related procedures. 25. Respondent NYSBOE maintains the official Rules of the State Reform Party, and is joined as a necessary party out of an abundance of caution pursuant to CPLR § 1001 26. _ Respondent CITY OF NEW YORK, has authority over the NYCBOE as the latter is an administrative agency of the former, and is joined as a necessary party out of an abundance of caution pursuant to CPLR § 1001 27. _ ERIC T. SCHNEIDERMAN, as Attorney General of the State of New York, is noticed pursuant to the requirements § 71 of the New York Executive Law, and $1012 of the CPLR, as the Petition places provisions of the New York State Constitution at issue. 28. Respondent CURTIS SLIWA, is the Chair of the Petitioner Reform Party. CURTIS SLIWA, as Chair of STATE COMMITTEE OF THE REFORM PARTY OF THE ‘STATE OF NEW YORK (‘Reform Party’), has authorized this action to be brought on behalf of the Reform consented to the jurisdiction the jurisdiction of the Court, asconfirmed by this pleading, which has been verified by FRANK MORANO, State Secretary of the Reform Party. CURTIS SLIWA is joined in an abundance of caution as a necessary party under CPLR § 1001, so that jurisdiction over the STATE COMMITTEE OF THE REFORM PARTY OF THE STATE OF NEW YORK may be had unequivocally and without question, and as the Reform Party's Rules, previously filed with the NYSBOE, may be a fact at issue in this case. SUMMARY OF THE FACTS 29. Petitioners repeat, reiterate, and reallege all allegations made above as if fully set forth herein and further allege as follows. 30. Petitioner FRANK MORANO ("MORANO), as Chair of the Petitioner Richmond County Organization for the New York State Reform Party (the “Richmond County Organization") and as the Secretary of the Petitioner New York State Reform Party organization (the “Reform Party’), raises this issue because Petitioners believe that immediate judicial determination is necessary under § 16-100 of the Election Law, and under § 16-102 of the Election Law. ‘THE ELECTION LAW CONTEXT 31. The Petitioners herein, the State Reform Party and the Richmond County Organization, by and through FRANK MORANO, who is Chair of the County Organization and Secretary of the State Party, believe that the Board of Elections in the City of New York (‘NYCBOE”) erred when it issued a Designation of Vacancies for Civil Court, Richmond County, 2% District pursuant to § 6-168 of the Election Law. 32. The Petitioners herein further contend that such Designation of Vacancies pursuant to § 6-168 of the Election Law offends the Guarantee of the Franchise Clause, 10the Due Process Clause and the Equal Protection Clause of the New York State Constitution's Bill of Rights, in that such designation constitutes invidious age-based discrimination as to the class of persons to which Judge Straniere is a member: elected and otherwise qualified jurists being improperly removed from the bench solely on the basis of the immutable quality of age pursuant to Mandatory Judicial Retirement Clause (Article VI, § 25) (the “Class of Judges"). 33. The Petitioners herein further contend that such Designation of Vacancies pursuant to § 6-168 of the Election Law offends the Guarantee of the Franchise Clause, the Due Process Clause and the Equal Protection Clause of the New York State Constitution’s Bill of Rights, in that Judge Straniere meets all other Article VI requirements to be seated to the Elected Public Office of Judge of the Civil Court, Richmond County, 2" District. 34. The Petitioners herein further contend that such Designation of Vacancies pursuant to § 6-168 of the Election Law offends the Guarantee of the Franchise Clause, the Due Process Clause and the Equal Protection Clause of the New York State Constitution's Bill of Rights, in that Judge Straniere was previously elected to a Ten (10) Year term on November 8, 2016. 35. The Petitioners herein further contend that to the extent that Respondents rely upon the Mandatory Judicial Requirement Clause in the State Constitution as the basis for the declaration under § 6-168 of the Election Law, said provision — viz. ~ Article VI, § 28, is constitutionally offensive, particularly to the New York State Constitution's Bill of Rights. 136. The Petitioners herein further contend that the Designation of Vacancies for Civil Court, Richmond County, 2% District pursuant to § 6-168 of the Election Law by the Respondent NYCBOE js in error, and that under § 16-100 of the Election Law, the Supreme Court is vested with jurisdiction to summarily determine the instant questions of law and fact. 37. The Petitioners herein further contend that the Designation of Vacancies for Civil Court, Richmond County, 2% District pursuant to § 6-168 of the Election Law by the Respondent NYCBOE is in error, and that under § 16-102 of the Election Law, the Petitioners may commence this proceeding to determine the instant questions of law and fact. 38. The Petitioners herein further contend that time is of the essence and the important issues of law and fact must necessarily be decided before July 13, 2017, so as to afford the Petitioners insofar as they are a "party" as defined in § 1-104(3) of the Election Law, the ability to properly organize the Party's affairs and properly select the Party's candidates; and this Petition should be accorded Emergency Status and statutory preference in accordance with § 16-116 of the Election Law on this basis, 39. The Petitioners herein further contend that time is of the essence because, in the event that Petitioners are incorrect, §6-120 of the Election Law requires that Designating Petitions for the Public Office of Judge of the Civil Court, Richmond County, 2 District, are filed no later than July 13, 2017, with the Respondent NYCBOE; and this Petition should be accorded Emergency Status and statutory preference in accordance with § 16-116 of the Election Law on this basis. 1240. The Petitioners herein further contend that time is of the essence because, in the event that Petitioners are incorrect, the Reform Party Rules require, in addition to the requirements imposed by §6-120 of the Election Law, that a Certificate of Authorization is filed to authorize and Reform Party Designating Petitions for the Public Office of Judge of the Civil Court, Richmond County, 2 District, no later than FOUR (4) DAYS after the last day to file a Designating Petition or July 17, 2017, with the Respondent NYCBOE; and this Petition should be accorded Emergency Status and statutory preference in accordance with § 16-116 of the Election Law on this basis. 41. The Petitioners herein further contend that the Primary Election to take place on September 12, 2017, as declared by the Designation of Vacancies for Civil Court, Richmond County, 2" District pursuant to § 6-168 of the Election Law by the Respondent NYCBOE js in error and should be preliminarily and temporarily enjoined pending the judicial resolution of the instant Petition. 42, The Petitioners herein further contend that to the extent the Petitioners’ Petition is dismissed or otherwise resolved as against the Petitioners, the Richmond County Organization and any other Richmond County Party Organizations that may join the Petition herein should be afforded the ability to file a Designating Petition and, if applicable under Party Rules, 2 Certificate of Authorization for their selected party candidate in the Primary Election to take place on September 12, 2017, as declared by the designation of a vacaney for Civil Court, Richmond County, 2 District, and said relief may then be issued nunc pro tune and without prejudice to this Petition. 43. As stated supra., a Designation of Vacancies for Judge of the Civil Court of the City of New York Pursuant to § 6-168 of the Election Law for the September 12, 2017, 13Primary Election, was prepared and issued by the Respondent NYCBOE” on April 19, 2017 (“Designation of Vacancies"). A copy of the same is attached herewith as EXHIBIT “cr”. 44. With respect to the NYCBOE's Designation of Vacancies: Vacancy #8 Borough of Staten Island, 2" District, the Designation of Vacancies indicates there will be a Primary Election held to fill a vacancy on September 12, 2017, and lists Philip S. Straniere as ‘Previous Judge” and Constitutional Age Limit as the “Reason for Vacancy" 45. The most recent Rules of the New York State Committee of the Reform Party adopted at the State Committee Meeting held September 24, 2016, and acknowledged “RECEIVED” by the Respondent New York State Board of Elections (the “Rules’) are attached herewith as EXHIBIT “D”. 46. The Minutes of the Reform Party State Committee Meeting held on September 24, 2016, are attached hereto as EXHIBIT “E”. These minutes as verified by the Petitioner herein, evidence, inter alia, the establishment of the Richmond County Organization and the election of MORANO and Secretary of the State Party. 47. Petitioner Richmond County Organization, pursuant to the Reform Party Rules, is considered a committee of the State Committee under §2-110 of the Election Law. 48. The current leadership of the State Reform Party was confirmed in the Supreme Court's decision dated October 27, 2016, in Merrell v. Sliwa, Index No.: 5829- 16 (Albany County) a copy of which is attached herewith as EXHIBIT “F”. 49. The Minutes of the Reform Party State Committee Meeting held on March 12, 2017, are attached hereto as EXHIBIT “G”, 1450. _ Irrespective of the provisions of § 6-120(4) of the Election Law, the Reform Party's Rules state in Article X, § 6: “it is the intention of these Rules to require the authorization pursuant to 6-120 of the Election Law of the designation or nomination of a person as a candidate for judicial office who is not an enrolled as a member of the Reform Party. 51. As such, the Richmond County Organization of the Reform Party is effectively required by its Rules in order to properly nominate a candidate for vacancy for Judge of the Civil Court of the City of New York to: a, Ensure that a valid Designating Petition pursuant to § 6-120 of the Election Law has been filed at the Respondent NYCBOE with respect to a qualifying candidate on or before the last day to filed Designating Petitions; and b. Ensure that a valid Certificate of Authorization is filed with the NYCBOE not later than four days after the last day to file the Designating Petition to which 52. A Petition Filing Calendar for the for the September 12, 2017, Primary Election, was adopted by the Commissioners of Elections in the City of New York on May 2, 2017, and issued by the Respondent NYCBOE on May 3, 2017 (‘NYCBOE Petition Filing Calendar’). A copy of the same is attached herewith as EXHIBIT “H”. 53. Pursuant to the NYCBOE Petition Filing Calendar, the relevant dates for the last day to file a Designating Petition is July 13, 2017, and the last day to file a Certificate of Authorization is July 17, 2017. 54. Petitioners have been harmed by the Designation of Vacancies made by the Respondent NYCBOE pursuant to § 6-168 of the Election Law because: 15a. Its unclear that said Designation of Vacancies should have been made at allwith respect to the Civil Court of the City of New York, Borough of Staten Island, 2" District; and b. Said Designation of Vacancies with respect to the Civil Court of the City of New York, Borough of Staten Island, 2" District offends the New York State Constitution; 55. Assuming arquendo that said Designation of Vacancies made with respect to the Civil Court of the City of New York, Borough of Staten Island, 2 District is hereinafter judicially determined to have been properly made after an Emergency Hearing and Determination of the issues of law and fact raised herein, only nunc pro tune relief will provide Petitioners a meaningful opportunity to properly designate and authorize the Party's candidate in accordance with the Party's Rules given the time constraints now established by the Respondent NYCBOE, allowing the Party to select a candidate ‘JHE MARESCA CASE 56. In the Court of Appeals’ generation-old opinion in the case of Maresca v. Cuomo, 64 N.Y.2d 242, 485 N.Y.S.2d 724 (1984) ("Maresca’), the High Court decides, in the employment context, that the Mandatory Judicial Retirement Clause (Article VI, § 25) of the State Constitution did not offend the petitioner's equal protection and / or due process rights 57. Petitioners distinguish Maresca from the instant case in a number of substantial ways: 16a. That the New York State Court of Appeals has never squarely addressed the facts at issue solely under the New York State Constitution®; b. That the New York State Court of Appeals has never squarely addressed the facts at issue outside the context of employment and under the context of the Election Law and the ability of Political Parties to Designate Candidates for Public Office and to challenge an improper Designation of Vacancies; ©. That the New York State Court of Appeals’ decision in Maresca is clearly distinguishable because Maresca was decided under the Federal Constitution and in the context of employment and the instant matter is brought under the Election Law and intimates the popular sovereignty and the finality of the results of elections embodied in the Guarantee of the Franchise in Article |, § 1 of the New York State Constitution’s Bill of Rights, in addition to the Due Process and Equal Protection Guarantees; d. That the claim in this matter is distinguishable from the claim in Maresca, as Judge Straniere, who was just elected last year by the exercise of popular sovereignty at the voting booth, is not a party to this matter, but rather itis the Reform Party and its members, by the Chair of the Richmond County Organization, that is claiming that the Designation of Vacancies impermissibly violates the enumerated fundamental rights of the voters and party members; ® The Federal Constitution is not intimated in this case. 7e. That Judge Straniere, as a member of a class of elected and otherwise qualified jurists being improperly removed from the bench solely on the basis of the immutable quality of age pursuant to Mandatory Judicial Retirement Clause (Article VI, § 25), should have a level of scrutiny accorded that is far greater than mere rational basis review; f, That the ambit of the class rights protected by the Equal Protection Clause in the State Constitution is greater than the minimums imposed by the Federal Constitution, as, at least in the State of New York, age is as immutable a characteristic as gender, national origin, sexual orientation, or the color of one’s skin; g. That class of elected and otherwise qualified jurists being improperly removed from the bench solely on the basis of the immutable quality of age pursuant to Mandatory Judicial Retirement Clause (Article VI, § 25) ~ rests upon a fundamental bias — outdated and inaccurate stereotypes - which correlate directly with the immutable trait of age at issue. h. That the Mandatory Judicial Retirement Clause (Article VI, § 25) is unconstitutional under the State Constitution under any level of scrutiny greater than rational basis review. 58. _ Petitioner point to the fact that this Petition does not intimate Federal Law or the Federal Constitution, 1859. Petitioners contend that the ambit of the rights protected by the New York State Bill of Rights as applicable in this matter is greater than the minimums imposed by the Federal Constitution? 60. Petitioners contend that the ambit of the rights protected by the New York State Bill of Rights as applicable in this matter is greater than the minimums imposed by the Federal Constitution, as, at least in the State of New York, age is as immutable a characteristic as gender, national origin, sexual orientation, or the color of one's skin. 61. Petitioner allege that the treatment of the “Class of Judges’ ~ rests upon a fundamental bias - outdated and inaccurate stereotypes - which correlate directly with the immutable trait at issue - age. 62. The Per Se character of the class-based discrimination in the instant matter is in direct contravention of the “Two Classes of Judges” argument made in Maresca."° 63. _ In Maresca, the plaintiffs alleged that the offending provisions discriminated between Judges under age 70 and those over age 70. There, the plaintiffs alleged — in the employment context - that the Maresca class of Judges was discriminated against because permitting Justices of the Supreme Court and Judges of the Court of Appeals to. receive certification for service, as Justices of the Supreme Court, until the age of 76, in contrast to those members of the judiciary who serve upon the Civil Court, Criminal Court, Family Court, County Court, Surrogate's Court and Court of Claims, none of whom may be so certified, was discrimination in violation of the Federal Equal Protection Clause. The ® See Footnote 7, supra. * Petitioners make the point that the Per Se character of the discrimination is similarly as applicable to elected and otherwise qualified Supreme Court Justices of any age that are subject to “mandatory retirement’ 19plaintiffs there also sought to invalidate the mandatory retirement provisions under the due process clause of the Fourteenth Amendment to the Federal Constitution. (Maresca v Cuomo, 64 NY2d 242, 250 [1984], 64. Unlike the Plaintiffs in Maresca, Petitioners contend that there are two separate discriminatory classes at issue. The first “class’ is the class of registered and enrolled voters in the New York State Reform Party who are harmed by the NYCBOE’s Designation of Vacancies with respect to the Civil Court of the City of New York, Borough of Staten Island, 2” District. The instant facts offend the rights of this class to the Guarantee of the Franchise and the Finality of Elections.™" 65. With respect to this first class of voters represented by the Petitioners, 106,325 of the total 106,618 voters (99.7%) in Judge Straniere’s 2016 election toa TEN (10) YEAR term had no problem with voting him onto the bench for his full term, 66. Petitioners contend that the State bears a burden of strict scrutiny in upsetting the sovereign will of the People in the election and continued seating of Judge Straniere as Civil Court Judge. 67. With respect to the second identified class, the “Class of Judges” — the class of elected and otherwise qualified jurists being improperly removed from the bench solely on the basis of the immutable quality of age pursuant to Mandatory Judicial Retirement Clause (Article VI, § 25) ~ are imputed unwarranted and misguided attributes such as increased frailty, increased health problems, decreased stamina, decreased capacity And said age-based bias becomes even more invidious and harmful as the arbitrary number of a judge's age increases. "\ See Footnote 6, supra. 2068. The Court of Appeals in Maresca advanced several state interests for the fixed retirement age at 70: (1) advancement of general considerations of judicial efficiency; (2) motivation and encouragement of qualified, younger attorneys with judicial aspirations, by this orderly process of attrition; (3) elimination of the unpleasantness and ‘embarrassment of selectively removing aged and disabled Judges; (4) prevention of harm by a few disabled Judges which more than offsets loss of judges who retain full powers past age 70; (5) elimination of the administrative burden of testing each Judge attaining the age of 70 to assess competency; (6) avoidance of the economic burden of testing and removing incapable judges: and (7) the fixing of a line at a certain age which attempts to uphold the high competency for judicial posts and which fulfils a societal demand for the highest caliber judges in the system. (Maresca v Cuomo, 64 NY2d 242, 247 [1984].) 69. Petitioners submit that none of the facts addressed the factors of the sovereign people's fundamental choice to elect the jurist of their choice at open elections to Public Office, a right that is protected by the State Constitution (Article |, § !) respective of the person's age and the motivation and encouragement of younger attorneys. 70. Petitioners point to the fact that in 2000, the Differentiated Case Management was introduced to the New York Courts to provide metrics as to judicial performance of judges of all ages. See "Comprehensive Civil Justice Program 2005: Study and Recommendations,” a report prepared by First Deputy Chief Administrative Judge Ann Pfau (2005), attached herewith as EXHIBIT “I 71. _ Petitioners further point to the “Standards and Goals” system that is already in place by the New York Office of Court Administration (‘OCA’) that serves as a further 24benchmark of judicial performance of judges of all ages. See EXHIBIT “J* attached herewith, 72. The factis, under the Standards and Goals systems, judges of any age can be adjudged incompetent in meeting the demands set by the Office of Court Administration, and no valid reasons can be offered to rebut the fact that in the last generation, OCA has enacted numerous standards and systems of review that were not in place in 1984. 73. Additionally, no valid reasons or statistical correlations that can be show that judicial performance under the OCA guidelines is diminished one iota by the jurist’s age. In fact, the opposite tends to be true as the more senior the jurist, the more resources that jurist is provided with by OCA 74. Petitioners point to social changes since Maresca that show that elderly status has become an increasingly poor predictor of physical well-being or physical and/or mental ability. KOHN L. Rev. at notes 104-105. 75. Petitioners will point to noted jurists such as the Honorable Ruth Bader Ginsburg, Associate Justice of the United States Supreme Court, the Honorable Jack Weinstein, U.S.D.J., the Honorable I. Leo Glasser, U.S.D.W,, the Honorable Eric Vitaliano, U.S.D.J,, and others, all of whom are still presiding Judges as octogenarians. NEW YORK LAW RECOGINZES THE PROTECTED CLASSES AT ISSUE 76. Petitioners will show that the class at issue in this case, insofar as itis solely an aged-based class, constitutes a discrete and insular minority needing protection form the majoritarian processes, as the majoritarian process has, especially in recent years, 22created new policies that subject this class of judges to unequal treatment based on outdated and inaccurate stereotypes about their vulnerability, well-being, and social role. 77. Importantly, New York State has been a legal standard-bearer for civil rights, particularly in the generation since Maresca, For example, the New York State Human Rights Law (Article 15 of the Executive Law was originally passed in 1945 as the Law Against Discrimination, and was the first of its kind in the United States). 78. The interpretation of the New York State Constitution has been expansive in the area of civil liberties, to the extent that it appears that the New York State Bill of Rights has “decoupled” from Federal minimum constitutional guarantees, particularly in areas involving Due Process, Equal Protection, and Human Rights. The New York Constitution, when considering the levels of protections afforded civil rights have not diminished in the last generation, currently now provides greater protection for civil liberties — including age-based discrimination - than does the Federal Constitution, which have remained significantly under assault from, inter alia, the Alt-Right and activist judges. 79. The Petitioners have and will point to several reasons to reject earlier dicta and apply an intermediate level of scrutiny to the question posed regarding the Mandatory Judicial Retirement Clause (Article VI, § 25) 80. The Petitioners believe that it is appropriate to distinguish Maresca from the instant matter and apply intermediate scrutiny to the class at issue. 81. The Petitioners believe that they will prevail if the Court properly applies intermediate scrutiny to the Petitioner's claims of class-based discrimination in violation of the New York State Constitution's Equal Protection Clause, Due Process Clause, and Guarantee of the Franchise. 2382. Petitioners contend that the class at issue - otherwise able New York State Judges who are Seventy (70) years old or greater and who are forced to retire — are imputed unwarranted and misguided attributes such as increased frailty, increased health problems, decreased stamina, decreased capacity. And said age-based bias becomes ‘even more invidious and harmful as the arbitrary number of one’s age increases. 83. Petitioners contend that the Class of Judges at issue in this case, insofar as it is solely an aged-based class, constitutes a group deserving of protection form the majoritarian processes, as the majoritarian process has, especially in recent years, created new policies that subject this class of judges to unequal treatment based on outdated and inaccurate stereotypes about their vulnerability, well-being, and social role. See KOHN L. Rev. at notes 109-113 84. Importantly, New York State has always been a trailblazer and legal standard-bearer for civil rights, and particularly in the generation since Maresca a. New York State law recognized same-sex marriage prior to the recent enshrinement in the Federal Constitution in Obergefell v. Hodges, 576 U.S. __ (2015) b. The New York State Human Rights Law (Article 16 of the Executive Law) was originally passed in 1945 as the Law Against Discrimination, was the first of its kind in the United States, and continues to be a model for other jurisdictions, providing greater protections that Federal Anti-Discrimination statutes. c. The Due Process Clause of the New York State Constitution has been interpreted expansively by the Court of Appeals in the area of Criminal 24Procedure, providing greater protections than the Federal law for the accused in many areas including speedy trial rights"2, the voluntariness of confessions,'® and for the convicted." d. New York State has been a leader in Labor Law and the protection of workers’ rights 85. Petitioners assert that interpretation of the New York State Constitution has been expansive in the area of civil liberties, to the extent that it appears that the New York State Bill of Rights has “decoupled” from Federal minimum constitutional guarantees, particularly in areas involving Due Process, Equal Protection, and Human Rights. The New York Constitution, when considering the levels of protections afforded civil rights have not diminished in the last generation, currently now provides greater protection for civil liberties — including age-based discrimination - than does the Federal Constitution, which have remained significantly under assault from, inter alia, the Alt-Right and activist judges. 86. The Petitioners have pointed to several reasons to reject earlier dicta and apply a level of sorutiny to the questions posed regarding the Mandatory Judicial Retirement Clause (Article VI, § 25) that is greater than cursory rational basis review 87. The Petitioners believe that it is appropriate to distinguish Maresca from the instant matter and apply a level of scrutiny greater than mere rational basis scrutiny in the analysis of the issue in this case. * People v. Vernace, 96 N.Y.2d 886, 887 (2001). * People v. Valerius, 31 N.Y.S.2d 61 (1972) "4 Cooper v. Morin, 49 N.Y.2d 69, 80 (1979). 2588. The Petitioners believe that they will prevail if the Court properly applies a level of scrutiny greater than mere rational basis scrutiny to the Petitioner's claims of class-based discrimination in violation of the New York State Constitution's Equal Protection Clause, Due Process Clause, and Guarantee of the Franchise. CONCLUSION 89. As to subject of constitutional interpretation, the words that none other than Woodrow Wilson said over a century ago still ring true today: Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop. Alll that progressives ask or desire is permission—in an era when ‘development,’ ‘evolution,’ is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine. — Woodrow Wilson, The New Freedom, A Call For The Emancipation Of The Generous Energies Of A People 90. For the foregoing reasons, the Designation of Vacancies for Judge of the Civil Court of the City of New York, Richmond County, 2 District, made pursuant to § 6- 168 of the Election Law for the September 12, 2017, Primary Election, prepared and issued by the Respondent NYCBOE on April 19, 2017 is illegal, in direct contravention of the previously cited sections of the New York State Constitution, the Election Law, and all other applicable law, and should be declared improper, invalid, null, void, incorrect, and without legal effect by this Court. 26WHEREFORE, Petitioners request an order of this Court a. Temporarily restraining the Respondents from conducting a Primary Election on September 12, 2017, pursuant to the Designation of Vacancy for Judge of the Civil Court of the City of New York, Borough of Staten Island, 2% District, prepared and issued by the Respondent Board of Elections in the City of New York pursuant to § 6-168 of the Election Law on April 19, 2017; b. Preliminarily restraining the Respondents from conducting a Primary Election on September 12, 2017, pursuant to the Designation of Vacancy for Judge of the Civil Court of the City of New York, Borough of Staten Island, 2° District, prepared and issued by the Respondent Board of Elections in the City of New York pursuant to § 6-168 of the Election Law on April 19, 2017; ©. Permanently restraining the Respondents from conducting a Primary Election on September 12, 2017, pursuant to the Designation of Vacancy for Judge of the Civil Court of the City of New York, Borough of Staten Island, 2 District, prepared and issued by the Respondent Board of Elections in the City of New York pursuant to § 8-168 of the Election Law on April 19, 2017; d. Declaring insufficient, defective, invalid, null and void the Designation of Vacancy for Judge of the Civil Court of the City of New York, Borough of Staten Island, 2" District, prepared and issued by the Respondent Board of Elections in the City of New York pursuant to § 6-168 of the Election Law 27on April 19, 2017, as to the Primary Election to be held on September 12, 2017; Declaring insufficient, defective, invalid, null and void any and all designating petitions heretofore filed or which may hereinafter be filed with Respondent New York City Board of Elections purporting to designate any candidate for the Public Office of Judge of the Civil Court of the City of New York, Borough of Staten Island, 2 District in the Primary Election to be held on September 12, 2017; Directing, requiring and commanding Respondent Board of Elections of the City of New York not to place and/or print the name of any candidate for the Public Office of Judge of the Civil Court of the City of New York, Borough of Staten Island, 2" District on the official ballots to be used at the Primary Election to be held on September 12, 2017; As alternative relief, if the instant Petition is not granted and a Primary Election shall proceed on September 12, 2017, pursuant to the Designation of Vacancy for Judge of the Civil Court of the City of New York, Borough of Staten Island, 2" District, prepared and issued by the Respondent Board of Elections in the City of New York pursuant to § 6-168 of the Election Law on April 19, 2017, then the Petitioner INTERIM COUNTY ORGANIZATION OF THE REFORM PARTY FOR THE COUNTY OF RICHMOND shall be permitted, nunc pro tune, to submit a Designating Petition designating a Candidate for Judge of the Civil Court of the City of New York, Borough of 28Staten Island, 2" District, pursuant to §6-132 of the Election Law, and the same shall be deemed timely for ballot access purposes; h. As alternative relief, if the instant Petition is not granted and a Primary Election shall proceed on September 12, 2017, pursuant to the Designation of Vacanoy for Judge of the Civil Court of the City of New York, Borough of Staten Island, 2" District, prepared and issued by the Respondent Board Of Elections in the City of New York pursuant to § 6-168 of the Election Law ‘on April 19, 2017, then the Petitioner INTERIM COUNTY ORGANIZATION OF THE REFORM PARTY FOR THE COUNTY OF RICHMOND shall be permitted, nunc pro tune, to submit a Certificate of Authorization, authorizing a Candidate for Judge of the Civil Court of the City of New York, Borough of Staten Island, 2” District, pursuant to the Rules of the New York State Reform Party and §6-120 of the Election Law, and the same shall be deemed filed timely for ballot access purposes; i. For such further relief as the Court deems just and proper. DATED: Staten Island, New York June 28, 2017 Yours, etc., LUTHMANN LAW FIRM, PLLC AM A hale Richard A. Luthmann Law Chair New York State Reform Party 1811 Victory Boulevard Staten Island, NY 10314 Tel: (718) 447-0003 Fax: (347) 252-0254 ruthmann@luthmannfirm.com 29VERIFICATION State of New York County of Richmond ss.: FRANK MORANO, being duly swom, deposes and says: | am the Petitioner in this matter and | am the Chair of the Interim Committee of the Reform Party for the County of Richmond, State of New York, | have read the foregoing pleadings to be submitted to the Court and know the contents to be true to my own knowledge, except for those matters alleged to be on information and belief, and as to those matters, | believe them to be true. Hea) tan Sworn to before me this_o day aol? of NOTARY PUBLIC 77 RICHARD 4 LUTHMANN NOTARY PUBLIC STATE OF NEW YORK RES.no. 02105295872 COMN. EXP: FEB. 1h, 2079EXHIBIT ARethinking the Constitutionality of Age Discrimination: A Challenge to a Decades-Old Consensus Nina A. Kohn" The consensus in the legal academy and in the courts is that the window of opportunity for bringing a successful equal protection challenge to age discrimination closed decades ago. This Article challenges that conclusion by showing how current Supreme Court precedent creates an opportunity for certain forms of age discrimination to be found to violate the Fourteenth Amendment's equal protection guaraniees. in doing so, this Article calls into serious question legislation that uses age classifications in ways that undermine older adults’ important rights. For example, it challenges the permissibility of elder abuse legislation that limits the informational and substantive privacy rights of persons once they reach an advanced age. By demonstrating the new viability of a form of legal challenge long presumed to be unproductive, this Article outlines potential legal strategies for those who would challenge age discrimination tn the courts. I also warns policymakers that the courts may refuse to tolerate the cavalier use of age-based classifications TABLE OF CONTENTS INTRODUCTION : a sve 215, 1. THE DEVELOPMENT AND IMPACT OF MURGIA... 217 A, The Murgia Decision ' 218 * Associate Profesor of Law, Syracuse University College of Law. A.B, Princeton Univers, .D. Harvard Law School. The author thanks Leslie Bender, Keith Bybee, Tucker Culberson, David Driesen, Howard Eglit, Deborah Hellman, Richaré Kaplan Robin Malloy, Janis MeDonald, Julie Nice, Stephen Siegel, and’ William Wieeek for their comments on earlier deafis of this Atticle. Earir vetsions of ths Article were presented as part ofthe University of lnais College of Law's faculty workshop srs, nd the Syracuse University College of Law's Juntor faculyy workshop. The author thanks those who parieipated in the workshops for theit helpful comments. 10 ‘cldition, the author extenls thanks to Hayley Campbell, Anthony Chat, and allison Bosworth for their research assistance 23214 University of California, Davis (vol. 44:213 B, Murgia’s Progeny in the Supreme Court... sees 224 C. Murgia’s Progeny in the Lower Courts. 207 D. Part {Summary : von BL TL THE CASE FOR INTERMEDIATE SCRUTINY... Serene Th A. The Rationale for Applying Intermediate Sern eee. 1. Murgia's Faulty Reasoning eo igaa 2, Social Changes Since Murgia.... 238 3. Consistency with Prior Precedent so 249 B-_Dafining the Casifeaton Subject o Intermediate SCHEIN on a 250 C__ Part Simmary.. : 255 IL A TRANSFORMATIVE STRATEGY. ovens 256 A. A Predictive Account of Judicial Scrutiny of Equal Protection Claims. 256 B. Applying Third Strand Seruciny to aged Discrimination Cl on 267 I, Mandatory Reporting Example 267 2. Other Applications ...n.son 273 Co Part I Summary eon. aaeaTy IV, THe DesiRaBILiTy OF APPLYING HEIGHTENED SCRUTINY TO AGE DISCRIMINATION wnsnnonseennennnrnninnnanne 278 Concwusion, : ct sevens 2812010] Rethinking the Constewtinatty of Age Discrimination 215 When I was young I was calted a rugged individualist. When 1 was in my fftes I was considered eccentric. Here | am doing and saying the same things I did then and Fm labeled senite. — George Burns! IyTRopucTION For decades, both the legal academy and the courts have assumed that — unlike classifications based on race or gender —~ classifications based on age do not offend constitutional equal protection guarantees. Consistent with this assumption, chronological age is seen as an expedient and acceptable proxy for a variety of underlying human characteristics that policymakers wish to target for public policy interventions, and age-based criteria continue to be entrenched in US. public policy? For example, one must be twenty-one to consume alcohol legally and sixty-five to become eligible for general Medicare.? Chronological age criteria employed in statutes can also dictate the ability of an individual to invoke statutory protection from employment discrimination, the criteria for retaining a driver's license, or even the extent to which patients may communicate privately with physicians.* The understanding that age-based classifications are constitutionally permissible stems in large part from the U.S. Supreme Court's 1976 decision in Massachusetts Board of Retirement v. Murgia? in Murgia the Court rejected the claim that Massachusetts’ mandatory retirement age for state police officers violated the officers’ right to equal protection. ‘The Court reasoned that “uniformed state police officers over 50” did hot constitute a suspect class for purposes of equal protection analysis By the early 1980s, after the Supreme Court affirmed Jost YOu an Me Kip (Columbia Pictures 1979) (eauuring George Burns). 2 Robert Hudion has described the prevalence of age-based criteria as a “isinctive” characteristic of US. public polley See Robert 8. Hudson, Contemporary Challenges to Aging Policy. in Tue New Pouirics OF OLD AcE Poucy 3,3 (Rober & Hudson ed, 2d ed. 2010) {hereinafter Hudson, Contemporary Challenges » See #2 USCA, § 1395c (2010) (Medicare Par), 42 US.C.A, § 13950 (2010) (Medicare Part B), 42 USCA § 1395w-21 (2010) (Redicare Part ©), 42 USCA, 8 L395w-101 O10) (Medicare PartD), “See discussion Infra notes 272-73 and accompanying text (discussing how ‘mandatory eller abuse reporting laws can undermine doctor-patient confidentiality on aceount of patients older age). » 427 US. 307 (1976). Parererests216 University of California, Davis (Vol. 44.213 Murgia’s central holding in considering another form of age-based employment discrimination,” a consensus had developed in the legal academy and in the courts: litigants could not successfully employ the Fourteenth Amendment's Equal Protection Clause to attack age discrimination * This Article argues that this consensus view is wrong: the potentially successtul equal protection challenge to age discrimination is merely dormant, not dead. It shows that current Supreme Court precedent actually paves the way for finding that certain forms of age discrimination violate equal protection guarantees. By doing so, it calls into question legislation that uses age classifications in ways that undermine older adults' important rights. Now is a critically important time to reconsider the permissibility and appropriateness of age-based classifications. Current political conditions are ripe for an expansion of rights-limiting uses of chronological age in public policy. Confronted with significant financial limitations and a burgeoning elderly population, both American policymakers and the American public can be expected to show greater interest in limiting resources available to older adults? Moreover, new and highly problematic uses of such classifications have begun emerging in several important policy areas. For example, as discussed in this Article, growing interest in protecting older adults from abuse and neglect has led to & rapid expansion in age-specific legislation designed to provide special “protections” to older adults that, although well-intentioned, can severely undermine their civil rights.” By resurvecting the possibility of an equal protection-based attack fon age discrimination, this Article outlines a viable strategy for litigants to challenge such forms of discrimination in court, but also wars policymakers that the Constitution requires caution when using chronological age criteria in public policy. To this end, the Article * See Vance v. Badley. 40 US. 93, 112 (1970. Ax noted ie iv the wa accompany nts 9.9 mdm f cps te cna th ema fier Vane was quashed by Oe Supreme Cours subsequent dessin In Gregory» Asheroft, 501 US. 452 (1991), oes "Se generally infra notes 79:2, 96:99 and acompanying text (dlseusig development of this consensus). a . 1G; aon, Conenpureny Challe, spe nse 2 a 17 (emaing on Potent fr spending on dag? endement programs toe reed under Oba ESminisueton See Nina A. Kab, Oulvng Civil Rights, 86 Was. U. 1 Rev 1053, 1058-59, 167.80 (2009) thereinater Keb, Gulvig! (dscussng legalae approas and cxploring simples fr cil night eae those late opivaghs2010) Rethinking the Constitutionality of Age Discrimination 217 proceeds in four primary parts. Part | analyzes the Murgia decision and how it has been interpreted." Part II shows how Murgia’s reasoning is, consistent with finding that at least certain age-based classifications warrant intermediate scrutiny.” Part IIL demonstrates that, as the traditional dhree-tiered approach to judicial scrutiny collapses, a new approach to equal protection jurisprudence is emerging that is consistent with de facto heightened scrutiny for certain age-based classifications. I¢ then. shows how using this approach could lead courts to apply heightened scrutiny to slatates limiting the rights of older adults in several key policy areas.” Finally, Part IV explores the Justifications for age-based public policy, the problems created by uusing chronological age in public policy schemes, and the social benefits of subjecting age-based classifications to heightened serutiny."* 1. THE DEVELOPMENT AND IMPACT OF MuRGIA Understanding the Murgia decision and how the courts have interpreted its holding is essential to understanding current and future Prospects for successful constitutional challenges to age discrimination.” Although the Supreme Court had ruled on age-based classifications in earlier cases," in Murgia the Court set forth its firs, and most significant, discussion of the constitutionality of such classifications. This Part therefore provides a historical overview of the Murgia decision and its progeny. Specifically, it shows how a vigorous debate among the Justices as to the nature of rational basis scrutiny shaped the deciston’s language. It then explores the nature and scope © Seeifrapp 21731 © See infra pp 231-35, © Sein pp 256.78 & Seeinta pp. 27881 This Ai wes he tr age riinnton”in a valve-newta ese o reer, { stxinction based on chronologies ae. es recognied that not al situations sy which such elstineions accor ‘wil ant the negubve connotations normally fstociated with the ten “discrimination” Cf BEsoRat HEA, WHEN 8 Disckaisaion Wrowc? 2 (2008) (sing “dsctimination in panel mance and cxmlsnig wy) "© See Cannon +. Guste,423 US. 918 (1975) (mem) (airing federal diriet cout decision that Had dismissed state employer's challenge to mandatory relent system on grounds that spsem clearly sated rsinal basis seratny); Wasbrod “yn, 420 US. $90,940 1975) alsin dsm of prael clam), Meat Pennsylvania, 415 US. 986, 986 (1974) (dsmissing, for vant of subsaral federal «question, casein which former sate policeman sought decleratory Jagment Sing staat that required he etre tage sixty ws, among other things, eaconslonal218 University of California, Davis (ol. 44:213 of the three Supreme Court cases that subsequently considered the constitutionality of age classification. Finally, it discusses how the lower courts have applied and interpreted the Supreme Courts age discrimination jurisprudence. A. The Murgia Decision Robert Murgia joined the Uniformed Branch of the Massachusetts State Police at age twenty-five and was eventually promoted 10 its highest rank.” Although otherwise qualified to continue in his job, Murgia was forced to retire upon reaching age fifty because Massachusetts state law required that, with one minor exception, uniformed state police officers retire at that age." By contrast, officers under fifty years of age were subject to job termination only if, after a medical comprehensive examination, they were determined to have a physical or mental incapacity likely co be permanent.” Murgia had passed the comprehensive examination four months prior to his mandatory retirement, and it was undisputed that he was physically and mentally able to perform the duties of a uniformed officer. Murgia challenged the mandatory retirement provision on equal protection grounds and a three-judge panel of the district court found in his favor, striking down the provision as unconstitutional.2! Murgia had argued that the district court should find that the mandatory Feurement provision was based on a suspect classification. ‘The strategy behind this argument was elementary: the Supreme Court had already made it clear that suspect classifications would be strictly serutinized and would only be permitted in compelling circumstances. Accordingly, had the district court determined that 2 Bret for Appellee at 11, Mass. Bd. of Ret. v. Murgia, #27 US. 307 (1976) (No. 14-1084), 1974 WL 173951 at "11 TherinaferBrlf for Appellee) ' An officer was allowed not zo recre at age fy in the event that he had performed less than twenty years of service. Mass. Bd. of Ret. v. Murgis, 427 US. 307, 208-21 0976). However, given the agents for enlisting, such ace would have been most unusual "Td, Such examinations wete given biannually until offers reached the age of fony; after fory, a more rigorous exzmination was requited snmualy, tat 311 id 2% Murgiav, Commonwealth Bd, of Re, 376 F. Supp, 753,754 (D. Mass. 1974) ® Brief for Appelie, supra note 17,317 » See, eg, Graham v. Richardson, 403 US. 385, 372 (1971) (holding thet lassfications based on alienage ate “inherently suspect” and, therefore, “subject 10 lose judi seratny"); Loving v. Virginia, 388 U.S. 1, 11 (967) (finding exce to be spect class and, therefore, that cesilictions based on race should be subject to ‘most rigid serutiny” and “if they ae ever to be upheld, they must be shown to be2010] Rethinking the Constituionality of Age Discrimination 219 the disputed age classification was suspect, this would almost certainly hhave necessitated a conclusion that the statute was unconstitutional. ‘The district court, however, concluded that it did not need to reach the question of whether the classification was suspect because the statute failed to satisfy even the low standard of review it would apply to a nonsuspect classification — a standard it described as a basic rationality test. Specifically, the district court held that ‘a classification based on age 50 alone lacks a rational basis in furthering any substantial state interest." ‘The case was appealed directly to the United States Supreme Court, which reversed the district court. Among the Supreme Court Justices, the decision to reverse the lower court and uphold the Massachusetts statute was readily reached and largely uncontroversial; all but Justice Marshall voted to reverse.” Moreover, all were in agreement that the rational basis test should be applied in reaching this conclusion. There appears to have been no serious interest in applying the intermediate level of scrutiny that the court officially recognized only five months later in Craig v. Boren” and that it had. already begun applying selectively and informally." necessary tothe accomplishment of some permissible state objecive). The Supreme Cour, however, had not yet amiculated sirct scrutiny in precisely the way fis defined today. See Plyler v. Doe, 437 U.S. 202, 216-17 (1980) {stating that suspect classifications are only permissible where “preccely sailored to serve'a compelling ‘goremmental interest”). 2% See Murgia, 376 F.Supp. at 754 2g % Cf. Howard Eglt, Mandatory Retirement, Murga, and Agen, in EvrLowwest Discuitnation Stones 259, 275-74 Joel Wn, Friedman ed, 2006) hereinafter Fall, ‘Mandatory Retirement] (discussing procedure underlying, three-jdge panel and subsequent direct appeal) ® ‘See. generally Comespondence from Court regarding Murgia decision, in Manaus. ParEss, box 165, felder 8 (on ile. with US. Libraty of Congress) (containing Justices extensive communications regarding, Murgla. ‘See generally id (showing that despite significant dispute over rational basis scrutiny’s contours, all but one Justie supported ite application in Margi) ® See generally Cralg v. Boren, 429 US. 190 (1976) (holding that sate lew Uniting sale of “nonintosicaing” beer beverages io males under age twenty-one and females underage eighteen violated constitutional equal protection guarantees) ® Most notably, in che 1971 case of Reed v. Reed, 404 US. 71 S71), the Court ‘had found unconstitutional an Idaho state that required the state's probate court 10 sive males preference over females when appointing estate administrators. While the Court pusporiedly applied rational basis srutiny in Reed, its language paralleled sodern description of intermediate scratiny, The Court stated that to survive onstirsional serutiny the Idaho class “Sa fai and substantial elation 0 similarly eireamstanced bject of the legislation, so tha all percons ‘be treated alike!" Reed, 404 U5, at 76. Consistent with220 University of California, Davis {Vol 44:213 Despite the general agreement as to the proper disposition of the case, the process of formulating the opinion occasioned tremendous disagreement among the Justices. At the heart of the dispute was the question of how to formulate the rational basis test that the Court applied to nonsuspect classifications." Justice Brennan, who authored the first draft circulated to the conference,” favored a robust formulation that would require a classification to have a “fair and substantial relation” — which he treated as synonymous with a “reasonable relation” — 10 a “legitimate state objective." On the other side of the debate, Justice Rehnquist fought for a highly permissive standard that would invalidate a classification only if it “rests on grounds wholly irrelevant to the achievement of the State's objectives.""* Rehnguist opposed the “legitimate state objective” language on the grounds that it would encourage the courts to reject statutes with seemingly dubious legislative purposes without adequate judicial consideration. Likewise, Rehnquist objected to characterizing the requited relationship as “substantial” or “reasonable,” and argued that the only requirement should be a 4 heightened level of scrutiny, the Cour. struck down the Idaho statute as ‘unconstutional despite finding that & covld reduce the workload of the probate courts, Id, Similarly, im the 1972 case of Weber v. Aetna Casualty & Surety Co, 408 US. 164 0972), the Coun bad applied « eightened form of scrutiny toa classification based on illegitimacy of bit Of course, whether it had realy done so, or whether these cases were evidence of the evolution of the rational basis andard, was part of what the Justices debated in considering Murgia 2 In bis book, Making Constational Law, Matk Tushnst provides an account of the Court's decision-making process in Muga that alsa draws on the Marshall Papers He describes the court ss “hopelessly divided on equal protection theory or t least on the verbal formulations the justices use! to describe standards of review.” See MARE V. TUSHINET, MAKING CONSTITUTIONAL Law 110 (1997) % im the Marshall Papers, this draft is labeled as the second dra. There is however, no evidence to suggest that an earlier version was ever circulated and the correspondence amongst the Justices suggests that none as, 2 ‘See Draft Opinion of Brennan at 8, Mas. Bd. of Ret. v. Marga, (Jan. 27, 1976), ‘in Mansi Pacers, box 165, folder 8, file p. 21 (1976) (om fle with US. Library of ‘Congress [hereioalter Brennan Drafd) ® See Memorandum from J. Rehnquist to Conference at 3-4 (Feb. 11, 1976), in ‘MagsWaLt PAPERS, box 165, folder 8, a file pp, 40-4] (1976) (on file with US. Library of Congress) {heveinater Rekngaist, February 21] (quoting McGowan ¥. Mayland, 366.US. 420, 425-26 (1961) in support of his position) % ‘See Rehnquist, February 11, supra note 34, at 7-12, fle pp. 449 (suggest that under Brernan’s formulation of rational basis scrutiny, whether statate woul watistand such scrutiny might depend on ability of ttorney defending statute to propery frame ks purpose).2010] Rethinking the Constitutionality of Age Discrimination 221 “rational relation” between the challenged classification and a state objective > In addition to disagreeing as to the nature of the rational basis test, the Justices disagreed as to the significance that should be placed on ‘what was perceived to be older adults! “political clout.” In Brennan's circulated draft, the conclusion that age was not a suspect classification turned, at least in large part, on what it described as the political power of the elderly.” However, Brennan gamered little support from his fellow Justices for placing such emphasis on political power. Particular opposition was voiced by Rehnquist and Blackmun in memoranda shared with the conference” and by Marshall at length ina fitst draft of his dissent.” In an attempt to fashion a compromise, Justice Powell assumed responsibility for writing the opinion. Initially, he tackled the disagreement directly with a detailed discussion of the contours of rational basis scrutiny. In the end, however, the Justices reached an agreement not by elucidating the’ standard’ to be applied, but by obfuscating it. Powell slashed his lengthy discussion of both rational eid 19 fe po. 3-48, % brensan Dry spr ote 33,210, le. 23, ™ Se Correspondence tom } lackeun tJ. Breonas (Mat. 11, 1978). Mansi ares, box 165, fll’ 8, hep 36 Oo) (on fle Wii US Loan of Congres) CT sae Bil Reinga’ conecn abou the sages that petal Coat ito serve asa test of «suoectcasicazon, rma tet corto conse nt egaive way, bot 1 am Rent to go beyood tac; Conresponlenee fom j ches, Powel a (May 2, 1070 Maas Pa bor [6 eer fe PIO¥ (197) on fie wath US Livy af Congres) CT would be sonerhae fencredfalof our dosandono te eine Sores he age cage ‘shes egiatively remained yosr opinion the way tow ween. > sara explained. “Wl the ay afte burdened case to cb el though the legate proces sy tlnately elim hese asco tlastcalons, so long as cscaninatlon isl pdesprad tht sbliy should nox rec othe lowest vel the sans by wht we Jge tse caions at femain” See Dra Distentof nice Masta at, Mas dof Res Marga Cape, 1.1876, Masi Panes, box 165 Felder le p86 1978) (one wth is iar of Congres). heenter Matcha Dia Disnt. He ss ephased the slow sped at whch the plieal process works erliqued the sumer tat the Deven af clerlegstiors was ‘elevan co deuming the Eve of se forded to age clasiicatons, challenged the toon tha usage of Se Ape Discrimination in Enmploynent Act proved that cider workers do fol coast suspect cles, and refered so Sch sence eau gesteng the soa pes oer flac ada Seid 89 fey 68 "Sex Third Dra of Opinion of) Povell a 20-15, Mas of Rt» ori ite 9.1570), te asta Puen bor 15 ler le yp 6649 1970) {ie ih US irr of Cong Tecate Powel Thad ra proving sock deca)m University of Californta, Davis ol. 44:213 basis scrutiny and the political power of older adults in favor of a brief ‘opinion that — in Powell's words — left the Justices “free to ‘fight again another day.'"*" The result was a muddled and somewhat ‘opaque opinion that finally received the support of seven Justices who, after five months of back-and-forth debate, were apparently eager to dispose of the case. With the exception of Justice Marshall (who dissented) and Justice Stevens (who did not take part in the case's consideration), the Justices joined Powell's per curiam opinion. Im the final version of the opinion, the Court stated that “rationality is the proper standard by which to test whether compulsory retirement at age 50 violates equal protection.” The Court explained ‘hat strict scrutiny was not warranted because “the class of uniformed state police officers over 50° did not constitute a suspect class."* According to the Court, “a suspect class is one ‘saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to stich a position of political powerlessness as to command extraordinary protection from the majoritarian political process.’ “The Court then stated: While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin have not experienced a “history of purposeful ‘unequal treatment” or been subjected to unique dissbilities on the basis of stereotyped characteristics not truly indicative of their abilities Applying the rationality approach, the Court upheld the challenged statute, In doing so, the Court appeared to accept the state's argument that the mandatory retirement age would remove significant numbers of unqualified officers," By contrast, Justice Marshall dissented on the “See Memorandum from J. Powell to Conference (June 15, 1976), in MARSHALL ‘PaPERs, box 165, folder 8 fle p. 141 (1976) (on ile with US. Library of Congres) Mass. Bd. of Ret v. Murgia, 427 US. 307, 312 (1976). © datas id oid See id a 315-16 ("There is no indication that {the challenged provision) has the effect of excluding from service so few officers who are in fact unqualified 25 render age 50a cciterion wholly unrelated tothe objective ofthe statute": ce ala id % 316 19 (sating tha state legislative commission which reported on mandatory retirement provisions prior to their enaciment “proceeded on the principle” that ‘maximum retirement age for employees should be that ‘st which the elliceney of & large majority of the employees im the group is such that itis im the public interest2010] _ Rethinking the Constitutionatity of Age Discrimination 223 grounds that the means chosen to obtain the government's objective ‘were t00 over-inclusive to be constitutionally permissible.”” Underscoring the per curiam opinion was a high level of comfort among the Justices with age classifications, The Court seemed lulled into the assumption that age-based classifications are generally well intentioned. Indeed, an earlier draft of the opinion went so far as to state that “[tJhere is no basis upon which to assume that state and Tederal legislatures will not deal fairly with persons as they age and be responsive to theit needs." Nevertheless, the Court explicitly limited its holding to “the class of uniformed state police officers over 50" and did not reach the broader question of whether other age-based classifications might warrant heightened scrutiny. Although little of the internal debate within the Court is visible in the Murgia opinion, the battle helps explain its often unclear and inaprecise reasoning. For example, the opinion never clarified whether the state's actual purpose in enacting the mandatory retirement policy hhad to be legitimate, or whether (as Rehnquist had advocated) it ‘would be sufficient for there to be a hypothetical legitimate purpose for the policy.” More significantly, the Court's description of the class at issue contained verbal inconsistencies * While the Court limited its ruling to the class of “uniformed state police officers over the age of 50,” the Court spoke about the nature of “old age" and not specifically about the nature of being fifty or older in discussing its reasons for applying rational basis scrutiny.** That they rete?) dat 314 m7 (repeating se special legidatne commissions conclusion that "jo argument Is needed to demonstne that en above mile ie fe not usually physically sbleto perform such dues". Prd at 325 (Marsal senting. + Fourth Draft of Opinion of}. Powell a9, Mas. Bd of Ret v. Mugla, June 7 1076), in Mansa. Parbs, box 165, folder 6 fe p 128 C976) fon Me stk OS, Library of Congres) {hereinafter Powell Fourth Dra) Se Surg, 427 US. 40313. % The opinion sates that the eaionalty test requires that the challenged dlasscaion be “atinaly related fo fnhering legitimate sate tert” but goes on to determine tat hesitates ue others the purpose enalea by te Sate Seed a3, 30¢ Howard ght has characteried ths portion of the opinion assflerng from “an samoying degree of inexaeuiude” and containing cconfsing phraseology Se Eat Mandatory atremen, supra note 26, a 284-8 (eotng tha for ample Cour eed i deseing cla 5 Conn over how ove iy a alo Inada 2 See surg, $927 US. at 31305,224 University of Californta, Davis [vol 44213 In short, by making no mention of the debate over the nature of rational basis scrutiny,” the per curiam opinion was able to reach a relatively uncontroversial disposition despite an unresolved debate over its underlying rationale. B, Murgia’s Progeny in the Supreme Court In three subsequent cases, the Court had the opportunity to clarify and test the limits of its decision in Murgia. Three years after Murgia, ‘in Vance v. Bradley, the Court considered the constitutionality of a provision in the Foreign Service Act of 1946 mandating retirement at age sixty for all employees participating in the Foreign Service retirement system. Although the Court's decision in Vance was commonly characterized as slamming the door on future equal protection challenges to age discrimination,”* Vance was not argued to the Court as an age discrimination challenge, Rather, the petitioners argued that the challenged statute impermissibly discriminated on the basis of job classification because Civil Service personnel were not subject to the mandatory retirement requirements to which Foreign Service personnel were subject.” It was in this posture that the Court found that the provision furthered a legitimate governmental interest in providing promotion opportunities to newer employees* and furthered the “secondary objective of legislative convenience." ‘Thus, while Vance discussed Murgia, it did not seize the opportunity to test Murgia’s teach. However, Vance indicated that the Court remained comfortable with the notion that age-based distinctions are rational. In finding that the policy was rationally related to a legitimate state interest, the Court noted that “age does in fact take its toll” and remarked upon “the common-sense proposition that aging — almost by definition — inevitably wears us all down."® The Court did not appear to be bothered by what Justice Marshall, in his dissent, aptly characterized as a “record devoid of evidence that persons of lage © The Cour weated rational basis scrutiny and strietserutiny asthe only available options and weated rational basis scrutiny as w unitary concept despite the Justices setive debate onthe mater Vance v. Bradley, 40 U.S, 93 (1979), 5 1.919596 & See, eg. Howard Eg, Of Age and che Constitution, 57 Citi-KENt L. REv. 859, 1882-83 (1981) [hereinafter Eg. Of Agel See Vance, 440 US, 97 0.10. ® id at 101 ? id sx 109, © Ia aetiaa,2010] Rethinking the Constitutionalty of Age Discrimination 225 sixty] or older are less capable of performing their jobs than younger employees." The Court next considered the constitutionality of age discrimination in 1991 in Gregory v. Asherof® The case challenged a provision in the Missouri state constitution requiring judges co retire at age seventy.© At issue was whether the provision satisfied a rational basis test, not whether that was the proper test to apply. Writing for the majority, Justice O'Connor found the provision rationally related to the “legitimate, indeed compelling, interest in maintaining @ judiciary fully capable of performing the demanding tasks that judges ‘must perform." She explained that “[iJt is an unfortunate fact of life that physical and mental capacity sometimes diminish with age,” and therefore i was rational for Missouri to wish ta replace alder judges.“ “Most notably, she suggested that a rational basis might exist even if no Judges affected by the requirement were incompetent when removed as a result of the provision: "The Missouri mandatory retirement provision, like all legal classifications, is founded on a generalization 1k fs far from true that all judges suffer significant deterioration in performance at age 70, 1tis probably not true that most do. It may not be true at all” Although such dicta would suggest that O'Connor believed that very little scrutiny was necessary when assessing the classification, her language was actually consistent with intermediate scrutiny — she identified the government's interest a5 “compelling” and declared the provision not metely rational, but “reasonable.” ‘The most recent Supreme Court decision to interpret Murgia and address the constitutional status of age discrimination is Kimel ¥. Florida Board of Regents.® which was decided in 2000. At issue in Kimel was whether the Age Discrimination in Employment Act (ADEA) abrogated state sovereign immunity and, thus, whether the © See id. at 112 (Marshall, J, dissenting) © Gregory v. Asheroft, 501 U.S. 52 (1991) © “The Court resched the constittionality question afer concluding thatthe Age Discrimination in Employment Act (ADEA) did no: prohibit such = provision. See 470, oa © dat 472, old © td aca, O'Connor explained that voluntary retirement, impeachment, andthe election process might be inadequate mechanisms for removing judges, and concluded that {im|andatory retirement is «reasonable respocse to this dilemma" 1d. 8 472 © Kamel v. Fla. Bd. of Regents, 528 U.S. 62 (2000).226 University of Californta, Davis (vol. 44:213 plaintiffs, employees of state-owned institutions,” had standing to sue their former employers under the ADEA. Writing for the Court, Justice O'Connor asserted that the ADEA did not abrogate State Sovereign immunity.” O'Connor reasoned that although the ADEA contained a clear statement of intent io abrogate, abrogation exceeded Congress's authority under Section 5 of the Fourteenth Amendment because it imposed liability for constitutionally permissible acts.”= In concluding that the adverse employment actions complained of by the petitioners were not unconstitutional, O'Connor looked to the earlier Supreme Court cases that had found age discrimination in employment to be constitutional.” While purporting merely to summarize past decisions, O'Connor — joined in this portion of the opinion by a majority of the justices” — instead made sweeping pronouncements about the permissibility of age discrimination that extended well beyond what the Court had previously endorsed, ‘O'Connor not only endorsed the rational basis test for all age-based classifications,” but declared that “age classification is presumptively rational." O'Connor further asserted that “a State may rely on age as, a proxy for other qualities, abilities, or characteristics that are relevant to the State's legitimate interests. ... That age proves (0 be an inaccurate proxy in any individual case is irelevant."”’ Thus, although the narrow holding of the Murgia opinion created an opportunity for the Court to refine its treatment of age-based classifications in a {In Kimel, the Gourt reviewed an appeal ofthe Eleventh Cteult decision that consdeted tree separate age dsciminationsppedls Sel 171 1 Seed at 67 2d Justice Thotas, joined by Josie Kennedy, deseted as 10 whether there vas x clear intent 10 abrogate, bui joined the section of the Connor opinion acktessing the constwional sus of age discrimination. Se id st 99-109 (Tomas, Ji dissenting). Thus, « mejor joined the porns of the opinion addressing he CSnstttonal tae of age disconinaton ee at 8-86, 2 Jostces Sevens, Spor, Ginsburg. snd Breyer disented on che grounds that sli the Eleventh Amendmont nor the doctne of severaign tty lit Congress's silty vo authorize “federal remedies agenst sate agencies that cate federal sttatory obligations” 1d a 93. Thee separate opinion, concurring in pat and dissenting in pan, dd no comment on O'Conner’ dicossion ofthe constunonalty of ge dsimination 2 dt 82-54 lating that “as we recognised in Margie, Brady. and Gregory, age ss nova sispec easiicaon under the Equal Proection Clause” and tha “Islas snay discriminate onthe bass of age thou offending the Fourteenth Arendtmen the age classification in questo se ratlonallycelated toa lela ate ines). waaay mle2010] Rethinking the Constitutionality of Age Discrimination 227 careful, incremental manner,” the Court failed to capitalize on this opportunity in its subsequent age discrimination opinions. Rather, Vance, Gregory, and Kimel reveal a Court willing to embrace Murgia’s language in a sweeping manner without significant further reasoning C. Murgia’s Progeny in the Lower Courts Similar to Justice O'Connor's opinion in Kimel, the lower courts, have broadly embraced the notion that Murgia and its Supreme Court progeny foreclose the possibility of applying heightened scrutiny to age-based classifications.” Despite the fact that the Murgia Court was % f.CassR Ss, ONE Cast ATA TE: JUDICIAL MINIMALISM ON THE SUPREIE count (1985) (prising judicial minimalism a ereating the opportunity for deliberate ineremental judicial decisions that leave space for democrat deliberation) * Since Muri, ll ofthe cicut cours have decided age diserination cases that turned on Margi. All have at leat i nare, ape anal bass srt. See Gry ¥- Chiy of Watnet Robins, 311 Fd 1534, 1337, 1389 (Lith Cir 200) Capping ‘atonal basis srutny o uphold law barring persons ander age of weeny-oe form entering establishment that sll alcohol but not food) Breck, Michigan, 203 F 3d 382,387 (6th Cir 20C0) (holding that Michigan legustion rendering person seventy yeas of age and older ineligible for judicial olfce did not violate equal protection becruse it’ was rationally telated io “Judiclefciency and reducing. pecisan appointmenss of judges"); Weber v. Stipe ne, 186 F 38 907,911 fBth Cit 1999) {Gioding that par’ vght co equal protetion mas wot vilsed when opposing Paty sedis peremprory challenges o strike oder jurors based on ther ages because 280 slaslictons do not wareat heightened serain), Rggin v. Office of Senate Fa Empl Paces, 61 F.3d 1563, 1571 (Oth Ge. 1995) dicating that statute requiring police lfcers to rere at fify-five dd nox sole equal protection guarantees because “fuhere is no plnustble ass for distinguishing ths ease from Murgi, or rom the Supreme Court's subsequent deesion im Vancl”) Inguerdo Prieto ¥. Yiercedo Rosa, 04 F.2d 467, 472-79 Cst Cir. 1990) (nding that demotion of older newscast feporter to allow hiring of younger woman dd not amount to equal procetion Violation based on age since tational bass text assailed, Thomas v-U. Postal Inspection Ser, 647 F.2d 1035, 1037 (10th Cir 1981) (holding that postal service policy Timing ge of new postal inspectors to thiry-four was ationaly elated to teed for comparuively young, strong. and vigococs personnel inlaw ehlorecmemt departments. Alford, City of Lubbock, 664°F 2d 1263, 1266-67 Cah ie, 1980) (upholding Texas's maniapal redrement sytem policy of withholding membership from employees hired alter age fity beatae of te rational effort to promote Sites bjective of encourging and rewarding long service among municipal employes) Kher ¥. GreerabacgSslem Sch. Diss, 616 F2d 675, 679 n6 (ld Cie 1980) (upholding school district's forced mandatory retirement policy at suave because Saul rational bass test); Palmer v. Tiecone, 576 F-2d 459, 462-63 2d Ca 1878) holding that sate compulsory revement system that required jeaches to fet a {ge Seventy satisted rational sis test and was "immune Irom consttionl sinc), Amv. Gnsll, 367 F.2d 1267, 1272 (ate Cie. 1977) apholding eighteen to thirty five-yearold age imitation for police officer appeans since retiion as rately related te legitimate purpose), Gaul v. Ganon, 569 Fd 993, 995 nt (Mh Cie28 University of California, Davis Wol. 44213 explicit in only raling on the permissibility of using a class consisting of officers over fifty, the lower courts have routinely cited Murgia’s age-related language for the proposition that all age-based classifications warrant only rational basis scrutiny. In language characteristic of this approach, for example, the First Circuit described ‘Murgia as holding that the “aged do not constitute a suspect class"! and that all “constitutional age discrimination claims are subject to the rational basis test, rather than strict or even intermediate-level scrutiny." Similarly, the Third Circuit has cited Murgia for the proposition that the “Supreme Court has determined that ‘classifications based on age do not burden a suspect class." Consistent with such broad interpretations of Murgia, the federal appellate courts have easily upheld a range of age-based distinctions in the employment context The notable exception is the Seventh Circuit's 197 decision in Gault v. Garrison.” In Gault, the Seventh Circuit considered an equal protection challenge to a statute that terminated tenure of public school teachers at age sixty-five."® While the court conchided that Murgia required the application of rational basis scrutiny.” it nevertheless found that the plaintiff had stated a claim under the Fourteenth Amendment." The court's decision turned on its determination that the state had failed to show that the policy rationally furthered “some identifiable and articulable state purpose.” gt apply heightened scrutiny to equal protecion challenge of statute that terminated tenure of public school teachers at age sixty-five, and stating that "eee are compelled to decline paints invitation [apply heightened serutiny] a5 Murga is clearly dispestive in this regard), ® Accord Martin Lyon Levine, Commants on the Consiutonal Lavy of Age Discrimination, 57 Cet -KeN L. Rav. 1081, 1100 (1981) deseribing Murgia opinion as largely dicta) "8 tegulerd Prieto, 894 F.2d at 471 2d © See Dungan w. Slater, 252 F.3d 670, 675 (Sd Cie. 2001). Notably, Gregory has also been subject 10 Such broadly sweeping characterization, See Breck, 203 Fd at 2395 (citing Gregory for proposition that “age is not a Suspect clasifiestion under she Equal Prowetian Clause. .") © See supra nove 79 and accompanying txt. 1 569 F 2d 993 (Teh Car. 1977) ‘The Seventh Citenit described two ways in which equat protection wes denied fon the basis of age: firs, cenure was denied on the basis af age: second, procedural safeguards were denied on the basis of age, See Gaull, 369 F.2d 31 995, Id a 995 nA (stating that “w]e are compelled to decline plains invitation {to apply heightened scrutiny] as Murgiais clearly dispositive in this regard”), 8 See id. at 997 treversing and remanding lower courts decision dismissing cas), Sec id. st 996-97; see also id. a 997 (Barnes, J, concuting)2010] _ Rethinking che Constitutionality of Age Discrimination 229 ‘The court explained that in Murgia the state clearly stated the purpose of its mandatory retirement provision, whereas in Gaull the state failed to identify the purpose of its requirement. The court further noted that even if it could assume that che state's purpose was to prevent retention of unfit teachers, it would still deem the statute unconstitutional because there was no evidence to indicate “any relationship between the attainment of the age of 65 and a schoolteacher’s fitness to teach” and “Lwle cannot assume that 2 teacher's mental faculties diminish at age 65.""" Despite the potential persuasiveness ofits reasoning, Gault remains a rare exception to an otherwise well-established approach to Fourteenth Amendment age discrimination challenges. Similarly, ® at 996 (rajorty opinion). © Id, at 996. The Court distinguished Murgta on the grounds that the tsk of ‘unfitness was more significant in that cas Because of the nature of the duties required of the policemen in (Murgial and the imminent possibility of unlitness shown to be related 10 advancing, age, fllure to perform properly m any given instance could become a ater of life or death, tn contrast, Ifa teacher becomes unfit, whether because of| age or other factors, st dees not become a matter of such immediacy that there is po time or opportunlty to take appropriate procedural steps for bls or her removal. IC the procedures normally taken for the removal of eh allegedly unfit tescher are sed, thee is greater assurance that unfit esckers ‘wl be removed while the res will beable to continue performing thelr jobs, utting to use the experience and knowledge gained over the years a © Only a handful of other cases at any level have deemed age-based classifications to be imational, ard even then, they have characterized the classification as one other than age. In Industrial Claim Appeals Office of Calorada v. Romero, 912 P 2d 62 (Calo, App. 1996), the court held that a statute which reduced workers compensation Denes for claimants age sixty-five or older with permanent coil disables failed to Withstand ational basis scrutiny. However, the decision turned more on the slstinction the statute made between types of claimants than the disinetion it made ‘based on age. Specifically, the Court sated that" |the challenged lawl fs not rationally related to cehieving those purposes because it eliminates bevelits for totally disabled claimans who are age sixty-tive or older, but provides such benefits for parvilly isabled claimants ofthe same age.” See Romero, 912 P.24 st 69. In a parallel case, State ex rel. Boan v. Richardson, 482 S1E.2d 162 (W. Va, 1996), the West Vieginia Supreme Court of Appeals held that « statute that required reduction of permaneat total disability benefits if 4 claimant also zecewed old-age Social Security benelts created an irrational classification because: (1) the lassiiemion ore no reasonable relationship tothe governments purpose of avoiding duplication of bens, and (2) it {ue to reat equally all persons within the clas of ld age soil scent recipies a7230 University of California, Davis Lol. 44:213 attempts to use state constitutions to challenge age discrimination also hhave been generally unsuccessful.” The fact that equal protection challenges have been widely unsuccessful, however, does not necessarily indicate that all future constitutional challenges to age discrimination claims will fail. Despite the broad pronouncements about Murgia’s reach, almost all cases in which courts have considered the constitutional permissibility of age discrimination after Murgia have been employment discrimination cases.” In those rare cases considering the constitutionality of age discrimination outside of the employment context, the challenged classifications have almost always been based on young age, not old age.” The result is that the courts have yet to really grapple with applying rational basis scrutiny in cases alleging that age discrimination involving older adults in non-employment contexts — for example, health care — violates constitutional equal protection guarantees, As will be discussed in Parts Il and Ill, this as significant implications and leaves the door open — or at least ajar — to age discrimination claims outside of the employment context. © See Jelfey M. Shaman, The Evolution of Equality im State Consiatonal Law, 34 Rurarss LJ. 1013, 1077-82 (2003) (reporting that age-based clissfieations are ‘generally considered to be “perlecly constitutional” by state cours considering such challenges). But see, eg, Arneson v. State, 864 P.2d 1263, 1249 (Mont, 1993) Gnvalidating state statate that differently sllocated pension benefits based on chronologic! age). See cases cited supra nore 92 © See, eg Gary v. City of Warner Robins, 311 F.3d 1334, 1337-39 (Ith Cit +2002) {employing rational basis serutiny in holding that ordinance barring persons under age of cwenty-one from entering “non-eating establishments” did not violate young nude dancer's right to equal protection); Douglas v. Hugh A. Sullngs, M.D. Inc, 870 F.2d 1242 (7th Ctr. 1989) (holding that neither minors nor mentally incapacitated are cither suspect or quasi-suspect clases, hat rational basis serutiny applies when considering consttationality of tolling provision that allegedly lscriminated against them; and shat challenged statute didnot violate mentally ‘capacttated minor’ right to equal protection), Gabree v. King, 614 F 2d 1 Gst Cin. 1980) (upholding siate law raising drinking age to twenty agiinst equal protecion challenge and, in so doing epplying rational basi seratiny); Pex, Milliken, 463 F Sopp. 1580," 1363, 1389 (ED. Mich. 1978) (upholding. siate consitutionsl famendntent that raised legal age for buying and drinking aleohol against equal protection challenge); se also Weber v. Strppit, Inc, 186 F.3d 907, 911 (8th Cir 1989) (reaching substanually same conciasion es Lawler). Lawler v. MacDull, 779 N-E.2d 311, 319 {IIL App. Cc 2002) (holding that tis permissible for parry to engage iw age discrimination im striking furor of edvanced age during voir cre because “andes either sate nor federal law te he ges clo which eights satiny applies"2010] Rethinking the Constitutionality of Age Discrimination 231 D. Part {Summary ‘Murgia has been interpreted more broadly than its narrow holding would require. Nevertheless, Murgia and its Supreme Court progeny should not be read as precluding the lower courts from entertaining the possibility that certain forms of age classification warrant some degree of heightened scrutiny or the possibility that some such classifications may not be rational. This is particularly true outside of the employment discrimination context because the Supreme Court hhas yet to consider an age discrimination challenge outside that coniext. As a result, the Court has not had the opportunity to show how it would apply its equal protection jurisprudence to age discrimination cases in which older adulis are disadvantaged with regard to other, potentially more compelling, interests. Moreover, since age discrimination claims in the federal courts — particularly those brought by older adults — have likewise focused almost entirely fon age discrimination in employment, most circuits’ own precedent does not preclude entertaining such arguments, UL THe Cast row INTERMEDIATE SCRUTINY In the years immediately following Murgia, many scholars and advocates remained hopeful that the decision might be confined 10 certain types of mandatory retirement situations * Even after Vance, there was some lingering optimism. For example, writing in 1981, Martin Lyon Levine explained that while Murgia and Vance “reveal judicial unreceptivity to the constitutional claims they discuss, as a matter of precedent the issues of age discrimination remain open for another day even for the elderly." It has been many years, however, since there has been any significant attempt to treat the issue as an open one.” Although criticisms of Murgia remain, the conventional ® ‘Se, eg. Lasle W. Abramson, Compulsory Retirement, The Gonsiation and che Maria Case. 32 MO, 1 Rev 25, 31 (1977) (ngoing tat la) aiferent result might wall occur were the characerisis relevant to employment ete those oer en phys stength"); John David. Pree. Comment. Consttuinal. La = Ca Frovecion — Sate Mendstory Retrner Lav Not Vila ofthe Equal Preecion Glavse, #8 Mis. LJ. 135, 142 (1977) augarsting that Mugs might mex prcluse ndings shat all andar reuement evs were anconsatonal because lj considered need for pysel strength by policemen In Marg). Levine, sara ote 8, a 1103 * The closes i student comment from 1993 in which the autor attempted to ina he ese fr heightened sertiny on the grounds tat Murals unseune essase it vas deaided six months porto the Cour “ofieily ‘cring itemeaine fering. See Jolie R Steer” Comment, Age Clssicwions and he Focenh232 University of California, Davis [vol 44:213 wisdom among both scholars and courts is that the Supreme Court has closed the door on future challenges to the constitutionality of age- based classifications. Howard Eglits writing exemplifies this approach, While he recognizes that the Cour’s precedent on age discrimination hhas been limited to the employment context, Eglit has characterized ‘Murgia and Vance as “leav[ing] virtually no room for successful future challenges to mandatory retirement, indeed the breadth of the decisions makes successful equal protection or due process challenges to age distinctions in any context extremely dubious.” Although the Supreme Court is extremely reluctant to recognize new quasi-suspect classifications. there are excellent reasons for the Court to reject its eatlier dicta that all age-based classifications warrant only rational basis scrutiny and to hold that at least some laws and policies that engage in age discrimination warrant an intermediate level of scrutiny. This Part therefore makes the case for applying intermediate scrutiny to age-based classifications. It shows how doing so would not requite courts to reject Murgia’s reasoning or to reject the outcomes of prior Supreme Court cases. It then argues that the Court should, consistent with its prior precedent, be more willing to use intermediate scrutiny with classifications’ that disadvantage persons based on old age status than with other age-based lassifications, ‘A. The Rationale for Applying Intermediate Scrutiny The case for applying intermediate scrutiny to age-based classifications begins with recognizing that the Courts reasoning in ‘Murgia was profoundly faulty. At least in academic circles, such Amendment Is he Mugla Sandard Too Od vo Sand. 6 Seraw Wa Cows L} 268, 2651995) contending that [ile Courts alding in Ning i gute useourd considering hat twas decded se months before the Cou offal crested idle tet for egal proteciton says") or a enti of ths angumen, ena nate 101 sed accompaying text © phe Of Age supa note 96,880; se alto Howatd Eg, Heath Care Aloation {ote elder Age Discrimination hy Another Name. 26 Hots. Rev 19,892 0989) Uheriafer alt, Health Care) CAfwgit and Vance demonseate tat We the employment sting teas, the Supreme Cou hes had no prose wth the noon that those who fe sceumulated too many yeats legitimately can be veld co steric desirable governmentreated and tuned commoay «ord mae that commodity avaible for yoonge succesos-) "See injra noe 211 and acconpaying tet ‘By santas, is incorrect to sosget tha intermediate seratny should be considered for age-asedclaicaions tow becase ihe Cour id tot preroany have the oppontnity to covsider tat agar, Not only bad the Court previo!2010] Rethinking the Constituttonality of Age Discrimination 233 recognition is hardly new. In the years closely following Murgia, the decision was roundly criticized in the legal literature." The negative response reflected both disappointment in the case's outcome and recognition that the Court's reasoning was both inexact and inconsistent with the weight of the evidence before it as to the nature and affect of mandatory retirement provisions. 1. Murgia’s Faulty Reasoning As previously discussed, in determining that “state police officers over 50" do not constitute a suspect class, the Court reasoned that the “aged” had not experienced “‘a history of purposeful unequal ‘pyle ieee scrstiny ax decd sopra nae 39, bu an aus bl eore the Coun had exp ang tat te Cou could apply an teed leet of Sin. Se Bt for Lage See forthe elders Poor et ess Ame Core Supporting Responder, sed. of Ret Morgia s97 Us 307 187) Wo. Te 104s), 195 Wt 173801 at 13-14 (arging tat Con shoud adope pprnch sed ed Ian, the Marge Coun sa wellawateol-—and in ace dct vet Gerald Gunther's tarvard Law Review ace ~ Gerald Gunther, The Supreme Coun TOV1 Term Foreword. n Seach of Evang Docne ona Changing Cou A Mode fora Never Ea Prtscton, 86 Has. Res. O83) ngpestn spy termediate level of seratiay, whch he dear a “mde eration mel thar would ask there was substentally reasonable ft between csiaton and legate branch sat purpose). Roh Gals ofthe opinion clei Ganers atte Se, eg, Fowell Fourth Dat spa ote 4,40 1, fle p13) (eng ae or Proposition tas desta for ple ond objects of egation oO et ed tine Teglon enacted pt indus tht lla Branch as fone on "nderyng problem) Powel Thed Daf supra now 40, 12, ep 90 (sae) ue See Schur supra note 96,329 pgesg th Margie Cours are dss Intemediate ern rll lack of sence of tl bly, and comtencing tat “dhe Cours holding in hur squiesnsound considering that was deh se sok before he Cs ol reset 3m ero egal pteton sal) "et, g, Abramson, spr pe 96, 50 (rein ovr for nok sting Marshalls “ding seal” approach): Pace supra noe 6, a 14 Cesrbing Course absicaung its va foneon a ening at sly stated ee ested stl by the spurt legultve branche” by “eenting] he yeoman ‘tional conneson sender’) (going Gather, spa note 10) a 33) Wills David Bars, Comment Massehcete Seo of rene rs & Fi Yea Ott Polen and Trad Equa rateion ase They Bath Pat The Prime? Fr REv. 398, 380.81 (977) ericting Coun for eat sugecing sue nal erainy eth tes cae rig tovert "gua fondenal ape ad age ts "similar" wo suspect clasleation) Star MKitshenbaum, Nove ge Discrminaton — Defeat of we Cantonal Challenge to Mander Ralrenek Mossad Bard of Rectemen Magis 27 US 04 8 Y Toe ess 68 £55 (977) Gegung tat moe serainy was waraned in pr berase Maria ole Imcerest In pursing chosen livelihood, Lyne Waseruan, Note: Forel Resronent fimo sth Supone Court Saaeoning gt Dern, 23 LOY Rv 231,198 57 S77) Geren esl n Muri234 University of California, Davis [vol. 442213 treatment’ ” nor been “subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities."!® ‘This was flatly untrue. As Eglit has pointed out, the very existence of the law being challenged in Murgia “would seem to belie” the Court’s unsupported statement.” Moreover, atthe time of the decision, there was extensive documentation of the plight of older workers, the Aisadvantages they faced based on age, and the unique effect such disadvantages had on older workers as a result of their ages. For example, a decade earlier, the US. Secretary of Labor W. Willard Wirtz had released a report (commonly called the "Wirtz Report") that found rampant age discrimination in employment based on unfounded stereotypes about older age. The Court's second line of reasoning for refusing to apply heightened scrutiny was also based on a fallacy. The Court stated that “old age does not define a ‘discrete and insular group in need of ‘extraordinary protection from the majoritarian political process.’ "! 1 was true that historically the majoritarian process had led to the passage of laws providing older adults with special benefits." However, the majority's conclusion that “old age” does not define a discrete and insular group was based on wo fundamental mistakes: (1) the decision to treat “old age” as a broad class, and (2) the decision to teat chronological age as something other’ than an immutable characteristic." "8 Mass Blof Ret v. Murgla, 327 US. 307,313 (1976). ' See Elis, Of Age, supra nove 36, x: 886 " See W. Wiutaao WikTz, THE O.oce AMERICAS WORKER AGE DISCHNINATION 1S ENOLOVMENT, REP, OF THE SECRETARY OF LaBoR TO CONGRESS 5-9 (une 1965). The ‘Wire Report farther found that age discrimination in employment was qualitatively alfcrent fom discrimination on the basis of race because it didnot appear to result feom dishice of or intolerance toward the aged. td. at 2-3, 5. This suggested diferent spproaches to addressing age discrimination and other forms of diseritsnation, but didnot undermine the repor’s significant Findings as t0 the prevalence of age discrimination in employment. Se alse ath v. City al Jackson, 54# US, 228, 253-56 (2005) (O'Conner, }., concurring) (discussing Wirtz Reports findings and their felevance te intepreiing ADEA) ‘ Murgia, 427 U.S. st 313 Guoting United Ststes v. Caalene Prods, Co.,304 US. 144, 152-153, a4 (1936). 'S See generally ROBERT A. HAROOTYAN, ANNOTATED INDEX OF FeleRat LEGISLATION Ingeacrive THe FLOEMLY (1877) (idenulying over sixty federal laws providing such targeted benetit) "8 Se Murgia, 427 USS, st 313-14 (stating, even old age doesnot define discrete and insula? group . .. in need of ‘extraordinary protection from the majortaran polieal prcts: Instead i maths a sage that each of vs wl rach if we Ive ob out sormal span").2010] Rethinking the Constitutionaity of Age Discrimination 235 Treating older adults as part of a single, homogenous group was relatively common at che time the Court decided Murgia. Until the late 1970s, older Americans were effectively “lumped together” into a single homogenous grouping for the purpose of policy-making." Since then, gerontologists have pushed for a more complex, layered understanding of old age. Under the modern understanding, old age is broken into subcategories: the “young-old” (typically ages sixty-five to seventy-four), the "middle old” or “old” (typically ages seventy-five to eighty-four), and the “old-old” or “oldest of the old” (typically age eighty-five and older)."° These categories better reflect the very real social and physical differences between these age cohorts. In addition, there is growing recognition that significant socio-economic and ccaltural diversity exists even within such refined age groups.""* The Courts failure to recognize the diversity within the older population likely contributed to at least some of the Justices perceiving the elderly to be a politically powerful group, Breaking away from a monolithic category of old age is necessary to understand the variability in the political power and political vulnerability of the aged." Historically the "young old” and healthy elderly have been relatively influential!” By contrast, the “old-old” and the frail elderly are less likely to be able to participate directly im the political ‘judith B. Gonyea, The Emergence of the Oldest Old Challenges for Public Policy, in Toe Furume oF AGEBaseD Punic POLICY 77,77 (Robert B, Hudson ed, 1997), "° See, eg., Carol D. Austin & Marin B. Loeb, Why Age Is Relevent, in AGE OR NEED 263, 267 (Bernice Neugarten ed, 1982) (parsing old age into such categories) ™ Cf. Kenneth F. Ferraro, The Evolution of Gevontology as a Scienific Feld of Ingury. ie Grnoxrovocy: Peesercrivts AND IssU08 13, 1353 Janet M. Wilmoth & Kenneth F. Ferraro eds, 3d ed, 2007) (discussing evoluiion of field of gerontology and field's move away from equating chronological age with disease and deereptace and explaining gerontologists now arderstand thar age is positively associated with heterogeneity in population) "© Tn Marshalls first draft of his Murgia dissent, he cited Robert Binstock's scholarship forthe point zht the political power af she aged was disputed by scholars, who nated that a lack of “cohesive identity” as an impediment to elders achieving, political power as a class. See Marshall Draft Disset, supra note 39,28, lle p65. ' There is much debate over the extent to which this is tre, See, ¢g, ANDREW E. ScHaRLACH & Levan W. Kave, CONTROVERSIAL ISUES IN AGING. 81-91 (1987) (Containing essays debating whether elderly have political clout). However, Iti tre {hat the young-old and the heachy old vote at disproportionately high raves compared ‘o younger voters. Inthe 2008 Presidential election, an estimated 72.4% of enieems ge sixty-five to seventy-four voted as did an estimated 68.7% of those age forty live 10 sixty-four, This is significantly higher than the percentage of those age eighteen fo twenty-four or twenty-five ro fory-four who voted, See US. CEN Bune, VOTING AND REGISTRATION IN THE ELECTION OF NOVENSCR 2008 - Deviled Tables, Table 2, huputheww census gov/thes/wnewisoedemoivering/publications/p20/2008/ables hts,236 University of California, Davis Ivol. 44:213 process,!* and their interests are increasingly given short shrift by old- age interest groups." Although disaggregating the broad classification of officers over the age of fifty would not have helped Robert Murgia to establish membership in a group deserving special protection (at the relatively young age of fifty, he would most likely have been found to be in a cohort with limited vulnerabilities), it could have significantly impacted the language and outcome of the Murgia decision. Specifically, such disaggregation could have helped reveal the unreasonableness of the classification to which he was subjected, thereby justifying a finding that the classification failed to withstand rational basis scrutiny. Additionally, had the Court examined a more narrow cohort (e.g., uniformed officers who were fifty, or uniformed officers in late middle age), the resulting language would have prompted lower courts to examine narrowly defined age echorts when considering the permissibility of other age classifications. This might have encouraged lower courts considering subsequent age Aiscrimination claims to find, for example, that the “old-old” are a discrete and insular group in need of protection from majoritarian processes. ‘The Court's determination that the class at issue in Murgia did not require protection also reflects its misguided decision to treat old age as a stage of being rather than an immutable trait Chronological age is mutable in the sense that it changes over time. Yet it is simultaneously immutable in that an individual has no ability to control it. [tis this latter characteristic of immutability — the inability to control an immutable trait — that is generally used to justify greater scrutiny for immutable characteristics.” This is, in part, because "Older aduls can face formidable barriers to voting. Some ofthese ace the result of physical disebllies, reduced access to tanspottition, of housing setting Cee placement ins long-term cate institution) See Nina A. Kohn, Preserving Voting Rights Im Long-Term Care Insitutions: Facittaing Resident Voting While Maintaining Election Imegriy, 38 McGroscr L. Rev. 1065, 1073.75 (2007). Others result, ceeetly oF Indiectly, from some degree of cognitive impairment. See Nina A. Kolin, Cognitive Impairment and the Right to Vote: Rethinking the Meaning of Accessible ection, | Caxabian ELDen LJ. 28, 20-44 (2008). This helps explait why the old-age and fail elderly tend io vote st lower rates than the young-old and healthy eldely. See US Census BuReAv, supra note 113 (Tinding that those age seventy-ive and over were significantly fess likely to vote than elther those age forty-five to sixtylour or sits live x sevenry-fonr In 2008 Presidential election. "See ifr notes 151-52 and accompanying text 1 Soe Mass. Bd of Ret. Murgia, 427 U.S. 307, 313-14 (1976), 4 See Kenji Yoshino, Assimllaionist Bias sn Equal Provection’ The Visblty Presumption and the Case of “Don't Ask Don' Tel,” 108 YALE LJ. 485, 494-95 (1958)2010] Rethinking the Constitutionality of Age Discrimination 237 ‘groups disadvantaged on the basis of immutable traits have historically been seen as more vulnerable than those disadvantaged based on trails they have the capacity to control. Examined from a control-based definition of immutability, it readily becomes apparent that chronological age is a human's most immutable characteristic. [n an era when both race and gender are increasingly understood to be socially constructed and fluid classifications, and gender can be altered through medical means, time travel remains a figment of the imagination, and itis thus utterly impossible to change one's chronological age." Indeed, in conflict with the per curiam’s reasoning, Brennan's original circulated draft recognized the immutability of chronological age and noted that age, like gender, was “an immutable characteristic determined solely ‘by accident of birth." By treating age as something other than iramutable, however, the Court was able to avoid having to reconcile its decision in Murgia with its earlier treatment of gender in Reed or in Frontiero.y: Richardson. In Frontiero, the plurality reasoned that strict scrutiny should apply to gender classifications because “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.""® While immotability is only one factor in the determination of whether a class deserves heightened scrutiny and itis a factor that has increasingly been de-emphasized by the courts and criticized by scholars,” the Court’ failure to recognize and address the immutability of ‘age nevertheless undermines its decision to employ rational basis scrutiny instead of the heightened scrutiny employed in Frontiero."™ (explaining that “the Supreme Courts jurisprudence emphasizes the descriptive sae of whether a person can conttol a characteristic” and ss more likely to consider trait immutable where tis “defined by nature rather than by culture") 10" 1d at 509 (explaining and critiquing this presumption. "Functional age, by conttast is certainly mutable Brennan Dra, supra note 33, at 9, file p. 22 "8 Fronterov. Richardson, 411 U.S. 677 (1973), dat 686 (Brennan, J, pluraty opinion), 2 ‘See generally Janet E. Halley, Seal Orientetion and the Polties of Biology: A Critique ofthe Argument from Immmurabilty, 46 STAN. L. REV, 303 (1994) (explaining that immurability is conceptually problematic and only one factor in Courts equal protection analysis); Cass Sunstein, ffomescxuality and the Constitution, 70 Ind. Lf. I, 9 (4894) (arguing on both descripive and normative grounds that “immutability i neither & necessary nora sulficient basis for treatment as a suspect cast’ "), Yoshino, supra note 117, at 518 (discussing how “courts have begun to withdraw the Ssmutbily icor. and ecent academe commentary seems univocal in cag or its reiernent as fator"), "The Court limited is treatment of mumetabilty to a sttement that age isa “sage238 University of California, Davis (Vol. 4#:213 In short, neither the Courts statement that older adults had not experienced a history of purposeful mistreatment nor its assumption that older adults were politically powerful was fully accurate at the time it decided Murgia. Accordingly, holding that age-based classifications warrant “intermediate scrutiny would not require rejecting the use of these indicators for determining what level of scrutiny to apply to such classifications. Rather, using that same approach — i.e., asking whether the age group has experienced a history of purposeful unequal treatment or been subjected to unique disabilities based on inaccurate stereotypes, and asking whether protection from majoritarian processes is needed — could reasonably have led the Court to teach the opposite conclusion: that the ‘mandatory retirement policy at issue in Murgia was unconstitutional 2. Social Changes Since Murgia Even if one were to concede that the Court’s analysis was correct when it decided Murgia, subsequent changes in the aging experience and in the perception and status of old age indicate that its analysis is Increasingly incorrect today. ‘The first important change to occur since Murgia is that the elderly population has experienced a significant decrease in the rates of disability and health-related problems. Of course, chronological age ‘continues to impact significantly both physical and mental well-being, often in highly predictable ways. As individuals age, the likelihood ‘hac they will be afflicted by cognitive impairments increases, as does the likelihood that they will experience limitations on their ability independently to provide for their own personal care (i.e, perform “activities of daily living” or “ADLs*) or independently to manage basic household tasks (i, to perform “instrumental activities of daily living” or “IADLs")."* However, over the past three decades, elderly status has become an increasingly poor predictor of physical well- being. For many decades, the Centers for Disease Control and Prevention (*CDC") has estimated the percentage of persons suffering from chronic conditions that cause limitations in activity and limitations in a major life activity. In 1967, forty-six percent of those sixty-five and older had an activity limitation and forty percent had a of being.” suggesting that i is not immutable because 4 changes over time, This ‘nlscompreins the irmutablly approach. Cf- supra note 117 and accompanying text. 8 See CeNTeKRS FOR Disease CoNTROL & PREVENTION, QUICKSTATS: ESTIMATED PERCENTAGE OF ADULTS WITH Dalty ACTIVITY LIMITATIONS BY AGE GROUP aND TyPe OF Lnetarton — Nanional. Braves [TERVIEW SURVEY, UNITED STATES, 2006, avallable at hieputww ede gow/MMWR/previewimmweheralmnma564087 htm2010] Rethinking the Constitutionality of Age Discrimination 239 limitation on a major life activity." In 1977, the figures were forty- three percent and thirty-seven percent respectively;!” in 1987, thirty- eight percent and twenty-three percent; in 1996, thirty-six percent and twenty-two percent. The evidence suggests that since 1996, the health status of sixty-five year-olds has continued to improve.!™ Today, only a small minority of sixty-five-year-olds experience either ADL oF IADL limitations." ‘The effect of these changes in health status is that: (1) chronological, age has become less predictive of one's abilities than it was at the time the Court decided Murgia, and (2) entry into “old age” staws — commonly treated as sixty-five — has also become less indicative of 2 Chamuss S. Winpen & Catouwn W. RIVERS, NATL Cre. FoR HEALTH Stars. (Curent Esrawares F20M THE HEALTH (NTERVIEW SURVEY: UNTIED Starts ~ 1967, VITA HEALTH STAT Sunes 10. No. 52, Table 9, a¢ 13 (1969), available at hrspfwn ede gow! nchsidata/serevse_10/r10_052aee.ndt 8 Lowwic ). HOWE & THOMAS F. Dasy, NATL Cra. FOR HEALTH STATS, CURRENT LEsrivaTEs ton HE Heat INTERVIEW SUEQzY: UNITED STATES 1977, VITAL HEALTH. ‘STAT SERES 10, No. 126, Table 14, at 24 (1978), available at huepifrw cde govdachs! easeresie_1O,820_126 pal % Cawmorre A. ScHOENHOA & Mamie MARINO, NATL Crk, FoR Heatti Stats, ‘Gumnest EstiaTes rmoM Tz NAT'L HeaLTA INTERVIEW SURVEY USS, 1987, VIEAL AND. HEALIN STAT SERS 10, No. 166 (1986), available at btpstiymw ede gowlnchs/data seriessr_10(S10_166,pal " Parwicia F, ADAMS Br at. Nav Crk FoR HEALTH STATS, CUnBe\T ESTATES [Front THz NATL HEALTH INTERVIEW SURVEY, 1996, VITAL HEALTH Stat Sents 10. No 200, Table 67, at 105 (1999), available ar hapieww ede govinchs/dat/srie!st_10/ 5110200 pal. ‘8° Data from the National Health tnformation Survey indicates thatthe percentage ‘of persons over sixty-five reporting excellent or very good health increased between 1984-1996 and 2005-2006, while the percentage reporting fae oF poor health decreased during that period, See CENTERS Fok DstAst ConTRGL & PREVENTION, NAT Cre. Fon HeaLtn Stats. Heacta Data INTERACTIVE, vrrw.ede gov/nchs/hdi him ase visited Aug. 11, 2009), Daca from the Medicare Current Beneficiaries Survey (MCBS) ‘indicates that Between 1996 and 2006, those over sixty-five became increasiigly likely to be capable to perform most types of ADLs and ADL. See. (shoving thet tol percentage of thse over sixty-five experiencing each of five types of ADLs decreased, ‘nd that percentage experiencing four out of six IADLs also decrease). In atton ‘the MCBS data indicates thatthe percentage of thore over sity-five experiencing the ‘most sever limitations (ie, limitations in three or more ADLs) deopped sigificana'y Derween 1996 and 2006. However, changes were not uniformly positive as the percentage of those over sixiy-five experiencing some level of functional iiation appears to have increased between 1996 and 2006, Seid 5 See Parnicla F. ADAMS ET A, CENTERS FOR DISEASE CONTROL AND PREVENTION, SSuMaRY HEALTH StATITics FoR THE US. POMLLATION: NATIONAL HieALT# INTERVIEW ‘SORVEY, 2007, ViTaL HEALTH STAT SeniEs 10, No, 238, Table 5, t 18 2008), available at Imuprivw.cde govinchsdataseriessr_10V5t10_238 pd (indicating that as of 2007, only 6.8% of those over sixty-five hdl ADL Tinutaion and only 12.7% had IADL. Unitation).240 University of California, Davis [Vol. 44:213 one’s abilities. As a result, some age-based classifications that may hhave previously appeared rational in 1976 can no longer be said to be rational. Moreover, to the extent that society holds outdated beliefs about the relationship between chronological age and well-being, older adults are increasingly at risk of being subjected to disadvantages, based on stereotypes not truly indicative of their abilities." The second important change that has occurred since Murgia is that aultudes towards older adults — and especially beliefs about age- based entitlements — have changed dramatically. The Court decided Murgia less than a decade after the passage of the historic Age Discrimination in Employment Act™ and on the heels of tremendous, ‘unprecedented growth in governmental programs specifically designed to benefit older adults." As Robert Binstock writes: (During the 1960s and 1970s, just about every issue or problem that was identified as affecting just some older persons became @ governmental responsibility: nutritional, legal, supportive, and leisure services; housing; home repair: energy assistance; transportation; employment assistance; job protection; public insurance for private pensions; special mental health programs; 2 separate National Institute on Aging: and on and on. By the late 1970s, the proportion of the annual federal budget spent on benefits to older persons had ‘grown to 25 percent... Jn such an environment, it is not surprising that the Justices were dismissive of the notion that older adults might need “extraordinary protection from the majoritarian political process.” Indeed, in Brennan's circulated draft, the conclusion that age was not a suspect classification tured, at least in large part, on the political clout of the Gerontologists began remarking on the increasing disconnect between chronological age and physical, psychological, and social well-being over thiry years go, See Bernice Neugarten, Older People: A Proje, in AGE Ok NEED 19, 20-21 (Bernice Nevgarten ed, 1982) (explaining in plece originally published’ in 1979 that chronological age is increasingly poor predicior of physical, socal, and imtellectuel performance) °8 29 USC. $8 621-534 (1967), "See Robert H. Binstock, The Contomporary Politics of Age Policies, in THe Now Pounies oF OLD AGE Poucy 265, 266 (Robert & Hudson ed., 2005) hereinafter Binsteck, Contemporary Politics}; Hudson, Contemporary Challenges, supra note 2, a4 ‘escribing decade between mid-19606 and -1970s ae “high-water mark of aging based public policy". '* See Binsiock, Comternporary Pols, supra nce 134, st 266, Pe has. Bd. of Ret. v. Murgia, 427 US. 307,313 (1976)2010) Rethinking the Constitutionality of Age Discrimination 241 elderly." Similarly, Powells early drafts included substantial discussions of elders’ political clout as evidenced by then new anti-age discrimination and pro-elderly legislation. ™ In the years since Murgia, however, there has been a significant shift in both the extent and design of governmental programs that specifically benefit the elderly. in 1976, older Americans were at the height of their political success as an age group." By comparison, the ‘government has scaled back or subjected to means testing many of the ‘old-age entitlement programs in existence in 1976, with the result chat they no longer uniformly benefit older adults. Binstock describes the Social Security Reform Act of 1983 as beginning this trend by subjecting social security benefits to taxation.!® Since then, Older Americans Act programs have been targeted at lower income and minority elders." Recently, for example, the Medicare Modernization Act of 2003 raised Medicare Part B premiums (premiums that are required to establish eligibility for out-patient and doctor-related health care services) for higher income beneficiaries." '% Speefically, im distinguishing age-based classifcsions for gender-based classifications, Brennan focused on elders’ role in polities. Brennan Dra, supra note 33, 9, fle p23. ‘The fourth draft of the opinion, for example, included the fallowing language, which was omitted in the final version ‘Tine aged have Rad a high degre of success in making the political process responaive to their needs. See, eg, Pension Reform Act of 1970, 20 US. 8 2001; Age Diserimization in Employment Act of... 1965, 42 US.C. § 3001 Several States have legislation forbidding age discrimination, inchoding Mossachuseuts. The participation of the aged inthe functions of fecisioamaking instintions at all levels andthe continuing legislative coneern at all levels for the problems of the elderly. including age discrimination, ermonstzate thatthe tacitiona politcal processes have not foundered where interests of the aged ate a sake Powell Fourth Draft. supra note 48, a7, fle pp. 127-28 (footnotes omitted) | andrew W. Achenbaum, From dhe Margins to Pacesettng: The Place ofthe Elderly in US. Legal History jrom a Historian's Perspective, 7 Man. ELDERS ADVISOR 93, 113, (2005) Grguing that “[ollder Americans emerged as the tnue beneicaces in the Fheyday of American liberaisn( the Johnson Administaton]") "© Binstock, Contemporary Poles. supra note 134, at 270, The Act also, and perhaps more significantly, raised the rtizerent age from sixty-five t0 (over long pphase-in period) siuty-even. See Social Security Amendments of 1983, Pub, L. No. 98 21, 82014a)) (1883). I") Binstock, Contemporary Politics, supra note 134, st 270, ° For an explanation of this change, which went into effect in 2007, see Social Security Administeation, Medicare Parc B. Premiums: New Rules for Beneicates with Higher Incomes, available at hetpshvwew ss, govipubs/ 10161 pl242 University of California, Davis {Vol 44:213 These policy changes partly reflect political shifts. The rise of the Reagan era in the early 1980s and the accompanying move to constrict social programming occasioned the introduction of taxation on social security benefits and new efforts to limit social programming for the elderly to those with limited income and resources." Similarly, the 1994 midterm congressional election ended forty years of Democratic control in the U.S. House of Representatives and has been credited with bringing about a decrease in preferential treatment of aging- related programs in Congress.“ ‘These policy changes also reflect a growing resentment of, and an auitudinal shift toward, older adults. As Binstock has explained, “{uhroughout the 1980s, the 1990s, and into the twenty-first century, the new stereotypes, readily observed in popular culture, have depicted aged persons as a new elite — prosperous, hedonistic, politically powerful, and selfish.”"* Older adults are seen as “greedy geezers” whose “selfishness is ruining the nation.”“® They are also increasingly the scapegoats for those seeking to reduce government spending or explain budget shortfalls." A key component of this attitudinal shift has been the questioning of the “legitimacy of elderly as beneficiaries." This shift, paradoxically, has been assisted by the work of gerontologists. By depicting the elderly as a heterogeneous class — not 2 monolithic entity — gerontologists have madvertently "© See Achenbaum, supra note 139, at 115; Binstock, Contemporary Plies, supra note 134, at 270. "See Janie S. Steckensider & Tonys M._ Parrott, Inseduction’ The Political Environment and the New Face of Aging Pokey in NEW DikecTiOws OLD AcE Pots 1, 34 Gane S Seckenrider & Tonya M, Parrott eds, 1998). OF course, the election's effets should not be overstated. The previous years federal budget act increased the taxabity of social security berets. See Omnibus Badget Reconciliation Act of 1993. Bub, No. 10266, 813213, 107 Sa. 312, 475.78 (1005. Morester, some new nefits for older adults (such as Medicare coverage for prescription drugs) were doped ater the election a suena % Binstock, Contemporary Polite, supra note 134, at 267. © See id sce also Achenbaum. supra note 138, st 116; M. Silverstein et a Selidary and Tension Between Age-Groups In the United States: Challenge for an Aging Avverca tn the 21st Centar, 9 vTL J. SoC, WELFARE 270, 272 (2000) (describing programs for elderly as coming under attack in eatly 1980s as eldetiy came to be labeled as “greedy geezers" and blamed for taking public resources at expense of young): Debra Street 6 Jeralynn Sitig Cossman, Greatest Generation oF Greedy Geezers? Socal Spending Preferences and she Elderly, 33 S0C. Proms. 75, 77 (2005) (scribing American press since early 1980s as poraying olde Americas as sls). "© See Dinstock, Contemporary Poltis, supra note 134, a 267: Hudson, Contemporary Challenges, supra note 2a 5. See Steckenrider & Parco supra note 144, a2,2010] Rethinking the Constitutionality of Age Discrimination 243 fed criticism of the elderly as undeserving of special benefits!” and encouraged policymakers to see them as part of a broader group of “needy people,” rather than a distinct interest group with distinct needs. Changes in the structure and focus of old age interest groups may also be fueling such policy shifts. Most notably, as part of its organization-building and maintenance strategy, AARP, the nation’s foremost old-age interest group, has shifted part of its focus away [rom its older members in favor of its baby boomer members."! This shift is facilitated by AARP's powerful membership recruitment program that recruits members as early as age fifty with promises of appealing discounts on a range of products and services. The third, and perhaps most important, change since Murgia is that new forms of legislation have resulted in older adults increasingly being subjected 0 unique disabilities based on their chronological age The past two decades have seen a proliferation of legislation aimed at protecting older adults from abuse and neglect. Many of the resulting statutes have the practical effect of abrogating the civil liberties of older adults based primarily, or even exclusively, on their chronological age.'* For example, Rhode Island law requires all persons with reasonable cause to believe that a person age sixty ot older has been subject to abuse, neglect, exploitation, or who is self- neglecting to report it to the State." Similarly, under Texas law, any person having reason to believe that a person age sixty-five or older is See td. at 2 (describing this phenomenon). © “Achenbaum, supra note 139, t 117 (*Our early history offers a sobering lesson to those who would scrap age aw criterion emitely older pegple often get lost in the ‘crowd when they are mainstreamed with other needy people) "3 See, eg, Ken Bensinger, AARP Generation Gap, 15(3) SMARE Mower 68-75 (Mar. 2006) (Uiscussng criticism that AARP has sbandoned ite older meinbers); Jelitey Bimbaum, Washington’ Second host Powerful Man, 135(9) FORTUNE 122 (May 1997) (describing AARP as shifting Its emphasis to its non retired members). Consistent with shs shift, AARP bas Feected Its former name, “American Association of Reticed Persons,” ard today instead uses is former acronym 8. AARPS 2007 Annual Report — which is peppered with images of paremis and childzen and in which the AARP executives appear to be the oldest individuals pictured — vividly illstrates this younger focus. Ses ARP Annusl Report (2007), avalable at ses. aa7p organ. aarporg faticlesaboulaarpvAnmualReporishq_raain bir, '® ‘This mew legislation has primarily been at the state level and has been characterized by three types of states: those governing Adalt Protective Services, ‘hose governing elder abuse reporting schemes, nd those increasing erinal abil for perpeustors of elder abuce. '% For additional discussion of Row these laws undermine constiutlonal rights snd interests, sce generally Koh, Oulving. supra note 10 "© See RI. GEN. Laws § 42-66. (Supp, 2009-10),2 University of California, Davis Vol. 44213 being abused, neglected, or exploited must notly a designated stave agency. As will be discussed further in Section IN(B) of this Article, such statutes create unique disabilities on the basis of stereotyped characteristics by selectively limiting the freedom of older adults to engage in certain forms of confidential communications, They also can ‘cause states to respond to reports of elder abuse in ways that target older adults for interventions such as institutionalization or guardianship that can further undermine their rights." Some states have also begun adopting a series of statutes that, in the name of protecting elders against sexual mistreatment, effectively criminalize certain consensual sexual activities when they involve older adults, typically singling out those older adults who also have some level of disability. For example, Washington state prohibits Consensual sexual activity between a disabled person sixty years of age or older and anyone who provides him or her with paid transportation," In addition, a paid ansportation provider who "See Tex Hus Rs. Cope AN 8 4800210), 48.051 (Vernon Supp. 2008) © stitutionakzaion and the positon of guaranty re commen interventions in elder sbune cases. See Stphen Crystal Stl Ply © Eller Asem Epes Anise: Covotr pe Fay 331, 998 Gal A Plemer Rosai 8 Wall de, 1986) Gating that der abuse victinsmay perceive “core they are flere abe Swoise than the disease") Lawrence Flee, Mandatig che Reporting of Sepeted Cases of Eider Ae An Tapproprit Infected Agee Response the Abe of Older dats 16 Fas 1.0. €8, B48 (1582) Carguing thon subjects of elder abuse repors have good reason to fear unvaried sneitavonlztion or gurdanstp) Margate. Hadson, Eder Msreatmen Caren Research, m ELBE astse Conrict ati Fay, spa, a (25,190 Gevewing resenrch on eaten llered to vitins of elder abuse and discussing sted tat found that nsutionaaon mas wenn reechaism used for fornix percent fiend eer abuse vietmg) ee Moon AL, ier Abuse and Nelet Among Vterans in Greater Los Angles Prolene, Types fad Iersenton Outcomes, n Buen Mstaca an PoLctFaacrcs & Restate 16, 191.59 (Jaana Mellor & Pica Brownell eds, 2806) Cinding hat most commen ‘nterention for sbused or neglected veterans in oipatent inc was to rove vit into longterm cace flit and tht second mast common inervenion Was Pace ‘eum de eonarvatrsp. ° Specialy, in Washington, having sexo intercourse witha dsabled person age shy or over io whom one has prosed paid transportation sth Cass A lony of ape fo the second degree les the pares ave lsflly marie. See Was Rev Cook Ai. EGA 44010116) (Wes Sopp. 2008) Geining term val elder or wulerable adult” as inching "2 peton snty yeas af age or ole wo has the functional, ‘mena, or piyskal eabilty 10 cae for inselt or ewe) 58A48 0506140 CA person ie guy of rape in the second degce when uodet Eircamstances rot consittng ape in tne hss dares he person engages in sel iercoutse wich smother person «Then she sic (se fal eae owt lerble ultand the perpetrator person who e not ated tothe itm tod Wh) Has a sigan reatlonship with he vitor Gi Was providing tenaporain, vethin the corse of iso her employment, theses atthe ume af tre fence)2010] Rethinking the Constitutionatity of Age Discrbmination 245 “knowingly causes” a disabled person age sixty or older, other than his for her spouse, “to have sexual contact with him or her or another® commits a felony even if the contact is indisputably consensual." Similarly, Vermont criminalizes sexual acts between anyone who ‘works or volunteers at a caregiving facility or program and any person whose ability to care for him or herself is impaired due to “infirmities of aging.""® Consent is irrelevant unless the defendant was “hired, supervised, and directed” by the vulnerable adult. Likewise, Florida imposes civil liability for ‘acts of a sexual nature” done in the presence of any adult “whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to... the infirmities of aging,” unless the actor has first obtained informed consent. '® Thus, civil liability can be imposed on anyone who engages in a sexually charged activity — whether he or she be an erotic dancer or life partner — in front of a person whose aging-related infirmities impair their ability to engage in activities of daily living who does not first stop to obtain the consent of such a person."® This is true even if the alleged victim is opposed to the suit!" Similarly, an individual is guilty of a felony if he or she ‘either “entices” an elderly person to engage in an act that involves 1d. 94-44. 050(2) (sing that second degree rape is clas Alon "See Wash, Rev. Cooe ANS. 894-44 100 (etn forth elements for crime of indecent eres” exception is ade disabled prion is would-be perpnovs spouse) © See Vr. Sta Ay 13,8 13794) (2008) CA petton who volunteers for aig ald bya ateiving fact or program shall not engage in ary seca activity tha Tlnerable adult. A person who violates this cubsectn shal be apsoned for not ‘hore than to years o fred not more than $1900.00, or bth) se els Vr Seat Ans st 13,8 137508) O10) eetning category of veunerble adult a ncuding “any person 18 yeas of ge or alder who's i pated de to. nits ot aging. of a physical mental, or developminta dibiiy, that reals Ir some impairment ofthe individuals alo @) provide for his or he own cae what ssstance ncn the rewtson of fod, sete, clothing, heath care supervision, or management of finances, or {\) protect hiself or heel rom abuse, neglect. OF eplotaon) "6 See Vr, Str. AN tt 13, 813796) (2008) (shal eam afimatve defense toa prosecution under this subsection tht the semua activity was consensual besween the vulnerable adult and a eaepiver who was hited, supervised, and ected by the ‘ulnerale adc") The state could be inepreed as permiting ihe defences to the crime of sexual abuse of walnerable ada ous no ote provision inthe Vermont Cote appear ofr an applicable consnt based detent we See Fa, Sia AN $8 415.102(25), 415102027, 415.111) (West Supp, 2008. 4 Seid 5.10223). Although an exception exits for “appropiate display af flection.” no definition of what costnues suk a dplay I proces See td $-415.1211 (permiting. alleged vitin's goad oe este independently bing si).246 University of California, Davis [Vol 44-213 sextal activity or acts in a lewd or lascivious manner in the presence ofan elderly person without the elder’s consent.”” An “elderly person” includes any person age sixty or older who is “suffering from the infirmities of aging,” which can, in turn, be shown merely by advanced age and a reduced ability to care for oneself. Such prohibitions thus criminalize, and potentially chill, a broad range of sexual behaviors in the presence of persons with full cognitive capacity primarily as a result of their chronological age. ‘These types of rights-limiting “protections” for older adults reflect the type of inaccurate stereotypes about old age that the Murgia Court thought were generally not part of the aging experience." Most notably, they are grounded in the inaccurate stereotype that older adults are commonly cognitively impaired and unable to make sensible decisions about their own lives and stereotypes that conflate physical impairments with cognitive impairments." Contrary to these stereotypes, at the age of sixty the vast majority of individuals are cognitively intact and not limited in either ADLs or IADLs." In addition, even though the likelihood of cognitive disability increases swith age, the majority of non-institutionalized persons with such disabilities are not old." Moreover, to the extent that emotional difficulties impede the ability to refuse consent, older individuals are Tess likely to be disadvantaged, as the vast majority of non- institutionalized persons with emotional difficulties are young or middle-aged." In addition, laws limiting consensual sexual relations with older adults reflect ageist stereotypes of the elderly as nonsexual 78 Seid at 05.105, % Seid a § 825.101) © he fae that a subset of such now sghtsliiting povections combine

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