Michael J. Theile, Plaintiff-Appellant,
State of Michigan; Michigan Department of State; Bureau of Elections; Ruth Johnson, Secretary of State; Director of Michigan Bureau of Elections, Defendants-Appellees.
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:17-cv-12066-Bernard A.
Friedman, District Judge.
Michael B. Rizik Jr., RIZIK & RIZIK, Grand Blanc,
Michigan, for Appellant.
C. Barton, Adam Fracassi, Kendell S. Asbenson, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.
Before: MERRITT, WHITE and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, CIRCUIT JUDGE.
Plaintiff-Appellant, the Honorable Michael J. Theile
("Theile"), is a Michigan state-court judge. In
2020, the year of the next election for the seat he now
holds, Theile will be 71 years of age. Because the Michigan
Constitution and the relevant Michigan statute prohibit a
person who has attained the age of 70 from being elected or
appointed to judicial office, Theile will not be eligible to
run for re-election. See Mich. Const. art. VI,
§ 19(3); Mich. Comp. Laws § 168.411. Asserting that
this age limitation under Michigan law violates the Equal
Protection Clause of the United States Constitution, Theile
asks this Court to dispense with rational-basis review of
age-based classifications, and instead adopt intermediate
scrutiny-a level of review he contends Michigan's
judicial age restriction cannot withstand. In the
alternative, Theile argues that even under rational-basis
review, the Michigan age restriction fails to pass
reasons set forth herein, we AFFIRM the
judgment of the district court granting
Defendants-Appellees' motion to dismiss Theile's
is a judge in the Family Division of the Genesee County
Circuit Court in Michigan. Theile was appointed to the bench
in November 2005, retained his seat by election in 2006, and
was re-elected in 2008 and 2014. The next election for his
seat will take place on November 3, 2020.
the Michigan Constitution, "[n]o person shall be elected
or appointed to a judicial office after reaching the age of
70 years." Mich. Const. art. VI, § 19(3). Likewise,
the applicable Michigan statute provides, in relevant part,
that "[a] person shall not be eligible to the office of
judge of the circuit court unless . . ., at the time of
election, [the person] is less than 70 years of age."
Mich. Comp. Laws § 168.411(1). Theile will be 71 years
of age on the date of the next election, and is therefore
ineligible to run. Theile declares that, "[i]f allowed
by a change in the law, . . . he will run for reelection on
November 3, 2020."
26, 2017, Theile filed a single-count complaint in United
States District Court for the Eastern District of Michigan,
alleging that Michigan's constitutional and statutory age
limitation on judges violates the Equal Protection Clause of
the United States Constitution. His complaint named as
defendants the State of Michigan; the Michigan Department of
State; the Bureau of Elections; Ruth Johnson, Michigan's
Secretary of State; and the Director of the Bureau of
Elections. Michigan's judicial age limitation, Theile
alleges, discriminates based on a characteristic that,
"like gender, is . . . immutable" and thus
"deserves heightened scrutiny." In the alternative,
Theile asserts, the age limitation cannot even survive
rational basis review, because it is "no longer
rationally related to a legitimate government interest."
Defendants-Appellees filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6),  citing Supreme Court
precedent holding that age is not a suspect classification
and therefore such classifications are subject to
rational-basis review. See Mass. Bd. of Ret. v.
Murgia, 427 U.S. 307, 313-14 (1976); Coleman v. Ct.
of Apps. of Md., 566 U.S. 30, 64 (2012).
Defendants-Appellees further cited Gregory v.
Ashcroft, 501 U.S. 452, 472-73 (1991), where the Supreme
Court upheld a like age limitation, and Breck v.
Michigan, 203 F.3d 392 (6th Cir. 2000), where this Court
upheld the Michigan age restriction at issue here.
Theile's response to the motion reasserted and further
developed his argument for breaking with stare
decisis, and reiterated that Michigan's age
limitation fails heightened scrutiny, or even rational basis
district court determined that controlling Supreme Court and
Sixth Circuit precedent foreclosed Theile's claim.
See Gregory, 501 U.S. 452; Breck, 203 F.3d
392. The precedential cases cited by the district court
upheld an indistinguishable Missouri constitutional
provision, Gregory, 501 U.S. 452, and the ...