*1 Dissenting Opinion bt Mr. Justice Roberts: I dissent from the Court’s and would disposition affirm without modification the decree of President Court Orphans’ Division Judge Taxis Pleas of Montgomery County. Court of Common Mr. Nix joins dissenting opinion. Justice Appellant, McIlvaine,
Police. C. J., 26,1973. Jones, Eagen, Before Argued April Pomeroy JJ. and Nix, Roberts, *2 O’Brien, for Walker, H. Boyd appellant. with Smyser, Attorney General,
J. Andrew Deputy for Attorney Israel Paokel, General, appellee. him for Human Relations Kahn, Pennsylvania Sanford amicus curiae. Commission, by
Opinion
3, 1973:
October
Pomeroy,
Mr. Justice
In
1970, appellant
Joseph Mcllvaine, having
July,
of
was
retired
age
sixty,
involuntarily
reached the
Police after
of
State
some 37 years
Pennsylvania
the
other than
In
his
respects
all
chronological
service.
for
admittedly suitable
em-
was
continued
appellant
age,
dismissal was
Commissioner of
His
ployment.
to Section
of
the Adminis-
acting pursuant
Police,
April
L.
P.
Act
trative Code
§65(d).1 Shortly
filed
P.S.
after dismissal,
petition
declaratory judgment Common
praying
and de
court construe
wealth
that the
Court,
provision of the Admin
clare
the cited
unconstitutional
(the
the defendants
Commis
istrative Code
sioner of the
Police and
Secre
tary
Commonwealth)
he directed to continue
employ
plaintiff
until
time as he should sub
such
dismissing
resignation
mit his
In
attain
65.
although
suit,
Commonwealth Court held that
immunity
sovereign
doctrine of
not a
in this
was
bar,
type
recovery against
offi
the state and its
case,
(Philadelphia
cers
Ins. Co. v.
Commonwealth,
Life
(1963)),
Pa.
190A. 2d 111
result
nevertheless,
history
declaratory judgments
of “the doleful
Pennsylvania”,
improper
such a suit was
because “there
remedy”.
appropriate
exists another available and
Mc
*3
Ilvaine
McKetta,
Pa. Commonwealth Ct. 262, 268,
(1971). Thereupon, following the advice offered in
opinion, appellant
the Commonwealth Court
com
menced the same forum the instant
suit mandamus.
Appellant both below and here has contended that
205(d), supra,
(1)
Section
is invalid as
unreasonable
discriminatory;
(2)
appellant’s
and
of
violative
civil
rights
Pennsylvania
under the
constitution2 and the
205(d) provides:
“(d) Any
Pennsyl-
member of the
Police, except
Deputy
vania State
the Commissioner
and
Commis-
sioner, regardless
rank,
of
who has
attained
who shall attain the
age
sixty years,
resign
membership
police
of
shall
in the said
Provided, however,
provision
paragraph
force:
That
of this
shall
apply
upon attaining
to
the State
members
Police Force
of
who
age
sixty years
twenty years
of
shall have less than
of service.
twenty years
Upon completion
service,
provision
of
of
of this
paragraph
applicable
persons.”
become
shall
to such
I,
(adopted May 16, 1967) provides:
2 Article
Section 26
“Nei
any political
Commonwealth nor
subdivision
ther
thereof
shall
Human Relations
violative
Act;3
of
Amendment
the Federal Constitu
the Fourteenth
to
all three
rejected
argu
tion.
Commonwealth Court
Under normal utilization of circumstances, a remedy so would be completely inappropriate fatal, would foreclose treatment the merits. any Appellant’s case, does not fit normal however, any pattern. When the Court dismissed the Commonwealth declaratory judg- any enjoyment deny person any right, civil nor discrim- against any person any right.” in the exercise inate civil *4 2(b) example For Act of October P. L. 952(b) provides amended, pertinent part: P.S. as in “It public policy hereby to be the declared this Commonwealth to employment of all individuals in foster accordance with their regardless capacities ., safeguard of their . . . . . fullest and to employment right to obtain and hold without their such discrimina- . . .” tion.
ment
it
on the then
suit,
relied,
correctly,
applica
quite
declaratory
for a
ble
of this Court that a suit
holdings
is an
as
to alternate
extraordinary
judgment
opposed
IN
435 Pa.
A,
C. H. Pitt
v.
remedy. See, e.g.,
Corp.
Pa. 551,
Considered
recent decision
light
stad
Travelers
452 Pa.
306 A. 2d
Indemnity Co.,
295 (1973) which established
declaratory judgment
an alternate
line of cases
overruled the
remedy,
on in
relied
the first Commonwealth Court opinion,
Pa.
Commonwealth Ct.
the effect
our dismissal
action on the
of mistaken
present
ground
remedy
kick
would be to
with
plaintiff
pillar
post
out
any fault whatever
his
Rather than caus
part.
him the loss
time and
in
ing
money entailed
starting
all
choose
over
we
to treat
the instant action as
again,
one
declaratory relief. So
we affirm
requesting
viewed,
the order
the Commonwealth Court on the opinion
of President
6 Pa.
Judge
Commonwealth Ct.
Bowman.
reinstatement, appealed to the courts from the informal decision of assumpsit wages or sued Commissioner recover for unlaw- fully withheld. *5 Opinion
Dissenting
:
Mr. Justice
Roberts
of
the Common-
After
service to
thirty-seven years
retired.
involuntarily
Mcllvaine was
wealth,
Joseph
concedes that
was admitted-
majority
“appellant
The
for continued
ly
employment.” Nevertheless,
suitable
in
of the Commonwealth Court,
the
adopting
opinion
It
the
Mcllvaine’s dismissal.
is un-
majority upholds
for
reason
that
sole
disputed
appellant’s discharge
of
I
was the
that he had attained the age
sixty.
fact
join
cannot
termination
a conceded-
arbitrary
this
servant.
ly competent public
I
that
of the rather
agree
majority
with
view
bizarre
case it should
treat
procedural history
ed as an action for
relief.
Friestad
declaratory
Co.,
Travelers
Pa.
I of the Commonwealth opinion Court, adopted “ states that o today by majority, reach the con [t] clusion would have us reach ... plaintiff we would have to hold that Human Pennsylvania Relations Act discharge employment prohibits by reason age a conclusion which exception, without the statute does to reach.” McIlvaine us permit Pa. Police, 6 Commonwealth Ct. 296 A. 2d Were this the only available analy I would case, join majority sis denying relief. However declaratory readily admits provision itself makes Human Relations Act general prohibition exceptions to its two discrimination. practice, discriminatory un-
“It shall be an unlawful qualification, upon occupational fide less based bona corporation or in the association, case fraternal *6 regu- security except upon applicable ... or where based by lations or the Common- established the United States Pennsylvania: wealth of . . .
“(a) any employer For of color, because the race, religious ancestry, origin of or sex national creed, age, any employ, to or individual to hire or to bar refuse or discharge employment to from toor individual, such otherwise discriminate re such with individual spect compensation, to or conditions hire, tenure, terms, privileges employment, of if the best individual competent perfrom able and most to [sic] services ,”1 required. statutory provision abundantly . . This il every “discharge employ lustrates that it is not by age” prohibits. being ment reason of which the Act It only age-inspired discharges clear that certain violate question the Act, the is whether Mcllvaine’s involuntary 205(d) retirement, mandated Section of rights Administrative Code2 his violates as declared by the Human Relations Act. provision paragraph “The of this apply, shall not to employment termination of because of the terms or conditions of
any pension bona plan, (2) operation fide retirement or any or terms conditions pension of plan bona fide or retirement which have the effect of requirement, (3) oper- a minimum service any ation group or employe terms of conditions bona fide plan.” 27, 1955, 744, §5, amended, insurance Act of October P. L. (Supp. 1973) (emphasis added). express §955 43 P.S. I do here any opinion question constitutionality on the of non of 43 P.S. vel §§955(a) (2) attempted jus- and The Commonwealth has not grounds. tify appellant’s on either of these dismissal Any Pennsylvania except “(d) Police, member of Deputy regardless Commissioner, rank, Commissioner only this case involved majority asserts, as the If, seemingly harmonization two the interpretation rely one might persuaded statutes, contradictory mandatory pronouncements on this Court’s pre-1968 reli such However, employment.3 in public retirement the 1968 our view power no within ance. is longer invalidates necessarily amendment which constitutional Code. of the Administrative 205(d) Section Constitu- 26 of the I, Article unconstitutional declares May tion, adopted Commonwealth. by the discrimination nor subdi Commonwealth any political “Neither the the enjoyment deny any person shall vision thereof nor against any person discriminate of any right, civil civil Commonwealth right” any the exercise deny rights nor it reasonably could not, does are constitutionally protected.4 employees public Human Eelations Act declares that, Furthermore, for an individual to obtain employ opportunity “[t]he *7 and to obtain all the for he is qualified, ment which facilities and advantages, privileges accommodations, of and commercial of accommodation of any place public age sixty years, attain the of or who shall has attained shall who membership police Provided, resign in the said from force: how- paragraph apply provision ever, of this shall not to mem- That upon attaining age sixty Force Police who of bers State twenty years Upon years comple- of have less than service. shall twenty years provision service, paragraph of of tion shall of persons.” April applicable 9, 1929, 177, Act of to such P. L. become July 10, 1957, 682, amended, §65(d) (Supp. P. L. Act of 71 P.S. as 1973). 3 Appeal, 416, (1957) Boyle ; Pa. A. Soltis 390 135 2d See 744 v. Philadelphia, (1940). Beynon A. Pa. 12 2d 338 43 See also Superior Scranton, (1968); A. Pa. Ct. 243 2d 212 190 iani S Superior Wilkes-Barre, Pa. Ct. A. 2d 67 Examiners, Board Bar 238-39, Schware U.S. my dissenting opinion in Adler S. v. Mon Hospital, (joined 453 Pa. 311 A. 2d tefiore J.) by cases cited Manderino, and therein. housing color, because race, without discrimination origin religious ancestry, age, are or national sex creed, rights hereby recognized and declared to be civil as in this act.”5 which shall be enforceable as set forth right age employment free from discrimina Thus, right protected by Rela tion is a both the Human civil majori tions Act and the 1968 Constitution. as If, ty 205(d) appellant’s re mandates determines, solely age sixty, tirement at based this termination age discriminatory Human Re both the violates lations Act and Article Section 26 the Constitu I, tion. correctly
The Commonwealth Court
observed that
Pennsylvania Human
“[t]he
Relations Act does not
absolutely protect
against discharge
employ-
one
from
by
age;
guarantee
ment
reason
it does not
retention
employment
proof
employee’s
until death or
inability
perform.
designed
protect
Rather, it
discharge
employment
discrimination in
by
age
doing
recognizes
reason of
so
a ‘bona fide
occupational qualification’
nondiscriminatory.
. . .”
However,
court erred when it declared:
appears
any supporting
“[PJlaintiff
to assert, without
proof
mandatory
age
that a
record,
retirement
police
occupa-
officers as a class is not a bona fide
qualification. merely say
tional
enough, par-
To
so is not
ticularly
light
Boyle
supra.
of the Soltis and
cases,
particular police
The fact
physically
that a
officer is
fit
perform
and able to
his
may
duties or that minds
differ
particular
upon
mandatory
retirement
selected
Legislature
proof
is not
of want of bona fides as
*8
qualification
applied
to the
uniformly
otherwise
and
nondiscriminatorily to the selected class.” Id.
(Supp. 1973). and its for Commonwealth agencies are, pur poses Human Relations Act to be treated as any other a bona “employer.”6 When fide occupational an em qualification (BFOQ) exemption is sought ployer, must he, complaining employee, prove job facts classification bringing particular within the Human exception. Philadelphia v. Relations 4 Pa. Commission, Commonwealth Ct. 287 A. 2d 703 (1972).7
Federal
Title
VII
the Civil
courts,
interpreting
Act
42 U.S.C.
Rights
et seq. (Supp.
§§2000
have likewise held the burden of
1972),8
establishing
BFOQ
a
on the
For
employer.
Weeks
example,
Southern Bell
Co.,
Rosenfeld
Pacific
Cir.
(9th
presented another
1971),
attempt by an em-
sexual
ployer
justify
discrimination on the basis of
BFOQ.
Judge Hamlet,
writing
ob-
court,
served “that
. . .
Congress,
established by Title VII
individuals must be
policy
judged as individu-
§954(b)
(Supp. 1973).
6 See Id. at 43 P.S.
Stroudsburg
Dist.,
East
See also Cerra v.
Area School
450 Pa.
(1973).
A. 2d
Developments
generally,
VII,
See
the Law—Title
84 Harv.
Rev.
1176-95
L.
Griggs
Co.,
Duke Power
401 U.S.
139
generally at-
and not on the basis of characteristics
ais,
groups.
religious,
Id. at
. . .”
tributed to
or sex
racial,
deciding
em-
Pacific’s
1225. The
in
that
court
Southern
ployment policy
conclud-
excusable as a BFOQ,
was not
[Equal Opportunity Em-
ed “that
the Commission
ployment
determining that
in
Commission] is correct
exception inapplicable
BFOQ
establishes
narrow
employment opportunities
on
are denied
where, as here,
capabili-
physical
the
basis
characterizations
the
charac-
ties and endurance of
those
even when
women,
legislation.”
recognized in
Id. at
teristics are
state
persuasive
1227.
are in accord with
These
authorities
Pennsylvania
Philadelphia
our
v. Human Rela-
cases.
Stroudsburg
supra;
tions
Cerra v. East
Commission,
District,
Area School
450 Pa.
II my majority’s I must also note from the dissent adoption of the conclusion that Commonwealth Court’s discharge appellant pursuant 205(d) of of to Section of Administrative Code 1929 does not violate the Equal of Protection Clause the Fourteenth Amendm presents paradigmatic equal ent.12 The a instant case protection violation which this Court not hesitate should recognize and correct. Failure to afford re suggested, give lief it is serve to aid and comfort will, may to those continue to who believe that citizens be arbitrarily pigeonholed for the of convenience the bu reaucracy. of the of Administrative Code “Any Pennsylvania
reads: member State Police, . . . or who has attained who shall attain the sixty years, resign membership shall in the said Boyle A. at 44. This conclusion was correct in 1940 2d when was However, 1973, “express statutory prohibition,” an decided. Pennsylvania Act, Human Relations as well as the constitutional opposite mandate the result. amendment my requires view Constitution While re- equal law, protection provides a matter of state versal as clause ground separate Karst, for this dissent. and distinct Serrano Responsibilities Opportunities A Court’s v. Priest: in the Development Law, Constitutional L. of Federal Calif. Rev. 720
Ml ,”13 faced force. . . The which must police question determination whether such squarely legislative within the function.14 proper scope legislative its the equal protection
Since
adoption
interp
judicial
through
has
and matured
grown
clause
of as a
conceived
vehicle
Originally
retation.15
the
of the lately emancipated
race,16
black
protection
scrutiny”
has been extended to mandate “strict
its scope
ancestry,17
classification based on
national
any
race,
sex19
emerged
Of
have
alienage.18
late, signs
joined
techniques
require
has
which
group
sorting
judicial
It has been further
sug-
searching
analysis.
April
July 10,
amended,
Act of
P. L.
Act of
§65(d)
1973).
(Supp.
For
P.
71 P.S.
the full text
L.
supra.
this section see note
I
See 6 Pa. Commonwealth
at
296 A.
at 634.
do
2d
express any opinion
propriety
on the
Commonwealth
exemption
Court’s
that neither the
of the commissioner
decision
twenty
deputy
nor that
with
commissioner
of officers
less than
years
equal protection
of service
clause.
violates
Id.
A. 2d at 632-33.
Laws,
tenBroek,
Equal
Protection of the
See Tussman &
*11
;
Law—Equal
(1949) Developments
Pro
in the
Calif.
Rev. 341
37
L.
; Gunther,
Supreme
(1969)
tection,
The
1065
Court
82 Harv. L. Rev.
Chang
Evolving
In Search of
Doctrine on a
Term—Foreword:
1971
Protection,
ing
Equal
A
L. Rev.
for a Newer
86 Harv.
Court: Model
(1972).
1
16
(16 Wall.)
(1872).
Slaughter-House Cases, 83
36
U.S.
17
Dist.,
621,
Free School
U.S.
Kramer v. Union
395
S. Ct. 1886
89
Loving Virginia,
1,
(1967);
(1969) ;
388
Reed
cation) ;
(four
traditional
[19]
v.
Frontiero
Reed,
Stanley
eight participating
404 U.S.
rational
v.
v.
Richardson,
Illinois,
71,
gested having impact a that classifications differential particular groups income added to the cir should be reviewing require in cle of cases which the court will justify “compelling in order state interest” to classif ication.20 requiring heightened equal pro recognized
Also analysis involving been “fundamental tection have cases procreation,21 interests.” This class interests includes voting,22 rights of the criminal defendant,23 right more limited somewhat extent, education,24 right privacy.26 and the travel,25
To
“rational
traditional
basis” test is
sure,
yet applied, particularly
regulat
cases
economic
recently,
only
legisla
ion.27
one
Until
case has a
wanting
been found
tive classification
under the tradi
question exempted
tional
statute
test,
there,
28
purview
corporation.
from its
one named
20
Supreme
Michelman,
Court,
1968 Term—Foreword: On
Protecting
Through
Amendment,
the Poor
the Fourteenth
83 Harv.
(1969).
L. Rev. 7
21
Williamson,
535,
Skinner v. Oklahoma ex rel.
316 U.S.
62 S.
(1942).
Ct. 1110
22
Blumstein,
330,
(1972); Harper
Dunn v.
405 U.S.
“Invocation dealing any body governmental from with not disable subject merely prohibi that the at hand. It means impact. regulation I re have a broader tion must gard salutary and the that states cities, it as doctrine powers must exercise their so Federal Government except up inhabitants not to discriminate between their fairly related to the differentiation some reasonable merely object regulation. equality ab is not This justice. knew, of the Constitution stract The framers forget today, no more that there is should not we arbitrary guaranty against practical and un effective require government princi than to that the reasonable impose upon ples a minori officials law which would Conversely, nothing ty imposed generally. be must a,s effectively arbitrary opens action so the door only pick those officials to and choose few allow escape they apply legislation and thus to will whom might upon political if that be visited them retribution larger can no numbers were affected. Courts take bet just that laws than to re measure to assure will ter equal operation.”29 quire laws be perceptively Gerald Gunther has Professor noted, As Supreme the United States Court has moved since away rigid compelling steadily standards—either testing legisla- or rational basis—in state interest state protection equal clause. Gunther, tion Supreme Foreword: In Term, Search of Court Express Agency York, Railway 106, 111-13, v. New 336 U.S. J., (Jackson, concurring), Gunther, cited S. Ct. supra 22-23. n.15
144 on A Model for Doctrine a Court: Changing Evolving a 86 1 Protection, Newer Harv. L. Rev. Equal There notable the two-tiered drop have been attempts for a test all adopt equal protection rhetoric and single model of cases.30 “The modest interventionism emerging would do more than for they have the courts have done the last to assure with generation rationality means, out on impinging legislative unduly prerogatives regard ends.”31 ing
The development single-test equal protection formula is illustrated Mr. Justice White's concur by ring Vlandis 412 93 opinion Kline, U.S. 441, 456, S. Ct. 2238 of the Court de 2230, opinion clared on ir invalid due process grounds Connecticut’s rebuttable that a presumption student, non-resident when in the for beginning state tui college remained, tion a non-resident his purposes, throughout education. Mr. Justice White based his on concurrence the equal protection clause.
“From these and other cases, such as
Dandridge
397 U.S.
Williams,
90 S. Ct.
471,
25 L.
2d
1153,
Ed.
491
Reed v.
404
(1970);
Reed,
U.S.
92 S. Ct.
30
71,
L. Ed. 2d 225
Frontiero
(1971);
411 U.S.
Richardson,
93 S.
Ed.
Ct.
36 L.
2d
(1973),
Weber
v. Aetna Casualty & Surety Co.,
31 Id. 23.
But
other
in Frontiero.
example,
concurring
it is justifiable
if
times we sustain
discrimination,
down,
or
it
rational
strike
basis,
conceivable
any
some
interest
compelling
sustained
unless
discrim
a State
as,
imposes
when
State,
example,
of a con
exercise
ination
burdens
penalizes
Shapiro v.
See,
Thompson,
stitutional
right.
e.g.,
I
It is thus that the lines the strict two-tiered equal protection becoming are In blurred. an effort to application rigid, dog- avoid mechanistic of a stultified Supreme the United States Court has ma, moved toward single, sliding-scale equal protection test. move- This applauded may analyze ment is to be since courts now employed by Legislature the means in all Al- cases. though judicial thorough inquiry legislative more into possible, classifications is now determination of sub- goals past, particular stantive inas remains, province Legislature. may The courts under not, equal protection, usurp legislative the rubric of function.
Testing the instant case these it standards, discharge is clear that pursuant Mcllvaine’s 205(d) to Section Administrative Code is vio right equal protection lation of his to the of the laws. reaching In this conclusion under the test outlined necessary together it gravity above, consider legislative of the interest affected classification— *15 appellant’s right employment—and to continued the thereby characteristic of the class regulated—attaining age against 60. This factor must then be balanced the interest of the in arbitrary state age means—an implement particular classification—used to regula tory age scheme—dismissal of all sixty who attain irre spective competency performance to continue of as signed duties.34 34 protection equal may only In cases courts consider the means Legislature adopts in which order to effectuate its substantive policy. Only through studious equal adherence pro to this tenet of analysis may tection return to the discredited doctrine of substan process be York,
tive due avoided. See Lochner v. New 198 U.S. 25 Ct. 539 S.
M7 In the case is clear that the Act’s is scope instant it admittedly broad. is Appellant unreasonably qualified Physi- to continue his duties as commander. troop mental he meets all state standards. His cally police in no declined. in order to capacity pro- has Yet way no more mote what can be than mere administrative it Commonwealth asserts that has convenience, I him. absolute to dismiss cannot right agree. Under the test which protection my equal should, the classification must demonstrate a view, apply, “sig nificant relationship” legislative purpose.35 Where such a fact it exists, must then be bal relationship anced the nature the class thereby disadvan taged. Here the means used to achieve the Act’s pur an is classification.36 pose arbitrary age There is no 35 Co., v. Aetna Cas. & Sur. Weber 406 U.S. 92 S. Ct. Reed, See also Reed v. 404 U.S. S. Ct. 251 ; Gunther, (1971) supra I n.15 34-35. note that the classification accomplish here is not the narrowest involved which could Legislature’s present purpose. The classification scheme over- is Tucker, (1960); U.S. Ct. broad. Shelton S. (1964); Alabama, Develop 84 S. NAACP v. 377 U.S. Ct. Law, supra n.15, at 1086-87. ments question here in The nature of the classification should also weigh heavily in A sub our consideration. classification must be searching analysis jected where to more it closed-ended—that is through may not, efforts, his own member remove where a class disadvantaged group. are, Such from the classifications himself course, age. alienage, origin, sex, and, example, race, national age affecting imply classifications “funda that all This is constitutionally impermissible. rights” Minimum re are mental outgrown. eventually here, may However, where, quirements distinguished by special singled treatment out for the class membership permanent. age, once achieved is Thus class maximum distinguishing go deeper analysis than it would were the must our sug As Mr. Justice Stone class otherwise. characteristic to United States v. Carolene Products gested footnote famous in his n.4, 152-53, 58 S. 783-84 n.4 Co., U.S. opinion). (concurring
showing significantly related to Mcllvaine’s performance troop of his duties as commander. On the contrary, appellant the Commonwealth concedes that respects physically mentally competent in all perform required system all his duties. A classification which mandates this anomalous result is violative equal protection clause where, Common- here, wealth has advanced no interest other than mere ad- convenience. ministrative This record demonstrates that through application has, mechanistic discriminatory equal oppor- been denied an statute, tunity profession—one to continue in his chosen admittedly eminently qualified. which he is preemptory right Such a denial of Mcllvaine’s to the equal protection of the laws mandates that he be rein- majority’s grant appellant stated. The refusal relief compels dissent. joins dissenting opinion.
Mr. Justice Nix in this “[Prejudice may discrete and insular minorities special condition, seriously operation which tends to curtail political processes ordinarily upon protect of those to be relied may minorities, correspondingly searching which call for more judicial inquiry.” Appellant. m on
Com wealth v. Shadd,