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Theile v. State of Michigan

United States Court of Appeals, Sixth Circuit

May 29, 2018

Michael J. Theile, Plaintiff-Appellant,
v.
State of Michigan; Michigan Department of State; Bureau of Elections; Ruth Johnson, Secretary of State; Director of Michigan Bureau of Elections, Defendants-Appellees.

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:17-cv-12066-Bernard A. Friedman, District Judge.

         ON BRIEF:

          Michael B. Rizik Jr., RIZIK & RIZIK, Grand Blanc, Michigan, for Appellant.

          Denise C. Barton, Adam Fracassi, Kendell S. Asbenson, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

          Before: MERRITT, WHITE and DONALD, Circuit Judges.

          OPINION

          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 constitutional muster.

         For the reasons set forth herein, we AFFIRM the judgment of the district court granting Defendants-Appellees' motion to dismiss Theile's complaint.

         I

         Theile 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.

         Under 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."

         On June 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."

         Thereafter, Defendants-Appellees filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), [1] 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 review.[2]

         The 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 ...


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