      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0049P (6th Cir.)
               File Name: 00a0049p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                              ;
                               
HON. DAVID F. BRECK; HON.
                               
WILLIAM LUCAS; HON.
                               
CLAYTON E. PREISEL; HON.
                               
                                      No. 99-1628
MICHAEL SCHWARTZ; HON.
                               
GEORGE E. MONTGOMERY,           >
       Plaintiffs-Appellants,  
                               
                               
                               
           v.
                               
                               
STATE OF MICHIGAN;
MICHIGAN DEPARTMENT OF         
STATE; MICHIGAN BUREAU OF 
ELECTIONS; CANDICE MILLER, 
                               
                               
Secretary of State, Chief
                               
Elections Officer; MARLENE
                               
M. BRUNS, Clerk for the
County of Lapeer,              
        Defendants-Appellees. 
                              1

      Appeal from the United States District Court
     for the Eastern District of Michigan at Detroit.
      No. 98-74677—John Feikens, District Judge.
              Argued: January 25, 2000
         Decided and Filed: February 10, 2000

                            1
2     Breck, et al. v. State of Michigan, et al.   No. 99-1628

    Before: NELSON, SUHRHEINRICH, and GILMAN,
                    Circuit Judges.
                    _________________
                         COUNSEL
ARGUED: Michael J. Lebow, LEBOW & TOBIN,
Farmington Hills, Michigan, for Appellants. Katherine C.
Galvin, OFFICE OF THE ATTORNEY GENERAL, PUBLIC
EMPLOYMENT AND ELECTIONS DIVISION, Lansing,
Michigan, for Appellees. ON BRIEF: Michael J. Lebow,
LEBOW & TOBIN, Farmington Hills, Michigan, Mayer B.
Morganroth, MORGANROTH & MORGANROTH,
Southfield, Michigan, for Appellants. Marcelyn A. Stepanski,
S. Randall Field, JOHNSON, ROSATI, LaBARGE,
ASELTYNE & FIELD, Farmington Hills, Michigan, for
Appellees. Paul W. Cousino, Mt. Clemens, Michigan, for
Amicus Curiae.
                    _________________
                        OPINION
                    _________________
   SUHRHEINRICH, Circuit Judge. Plaintiffs, five Michigan
state judges, appeal a summary judgment for Defendants,
State of Michigan and various state agents, on Plaintiffs'
federal equal protection challenge to state laws that render
them ineligible for re-election because of their age.
                    I. BACKGROUND
  Plaintiffs-Appellants are several State of Michigan circuit
and probate judges contemplating re-election who will be
seventy years old on the election days for the judicial offices
that they seek. Plaintiffs are Judges David F. Beck, William
Lucas, Clayton E. Preisel, Michael Schwartz, and George E.
Montgomery. Defendants-Appellees are the State of
Michigan, Michigan Department of State, Michigan Bureau
of Elections, Secretary of State Candice S. Miller, and
No. 99-1628     Breck, et al. v. State of Michigan, et al.        3

Marlene M. Bruns, County Clerk for the County of Lapeer.
Individual Defendants are variously involved in maintaining
and implementing state laws that render Plaintiffs ineligible
because of their age to stand for election to judicial office.
   The State of Michigan does not require its judges to retire
at a certain age. Rather, the Michigan State Constitution
renders ineligible for election to a judicial office anyone who
is at least seventy years old on the election day for that
judicial office: "Justices and judges of courts of record must
be persons who are licensed to practice law in this state. No
person shall be elected or appointed to a judicial office after
reaching the age of 70 years." Mich. Const. art. 6, § 19. One
implementing statute denies eligibility to the office of circuit
court judge to anyone older than sixty-nine on the day of
election:
  A person shall not be eligible to the office of judge of the
  circuit court unless the person is a qualified elector of the
  judicial circuit in which election is sought, as provided in
  section 11 of article 6 of the state constitution of 1963, is
  licensed to practice law in this state, and, at the time of
  election, is less than 70 years of age.
Mich. Comp. Laws § 168.411 ("§ 411"). A similar statute
applies to probate court judges. See Mich. Comp. Laws
§ 168.431 ("§ 431"). The judicial terms for Michigan circuit
and probate judges are six years. See Mich. Comp. Laws
§§ 168.419 (circuit judges), 168.439 (probate judges).
  Essentially, Michigan law creates two categories of seventy
to seventy-six year old people based on the relation of their
birthdays to the day of election. A successful judicial
candidate who becomes seventy years old after the election
day could possibly serve until he or she becomes seventy-six
years old. However, a person who is seventy years old on the
election day for a judicial office is simply ineligible for
election to that judicial office. Plaintiffs sued because they
will be seventy years old on election day and, therefore,
ineligible.
4    Breck, et al. v. State of Michigan, et al.   No. 99-1628     No. 99-1628     Breck, et al. v. State of Michigan, et al.   9

   Plaintiffs requested a declaratory judgment that section 19      we are especially reluctant to question the exercise of
of article 6 of the Michigan Constitution of 1963 and sections      congressional judgment.
411 and 431 of the Michigan Compiled Laws are
unconstitutional under the Equal Protection Clause of the         Id. at 83-84. See also Zielasko, 873 F.2d at 961-62.
Fourteenth Amendment. The Fourteenth Amendment
provides “nor shall any State deprive any person of life,           For analysis of the present case, we assume, but do not
liberty, or property, without due process of law; nor deny to     assess or necessarily endorse, the wisdom of the State of
any person within its jurisdiction the equal protection of the    Michigan in attempting to promote the competency of its
laws.” U.S. Const. amend. XIV, § 1, cl. 2. Plaintiffs claim       judiciary by eliminating candidates who are over sixty-nine
that the constitutional and statutory age restrictions are not    years old. We also recognize that the election eligibility laws
rationally related to the goal of preserving judicial             are not precisely or evenly tailored to eliminate such judges.
competence by eliminating judges who are over sixty-nine          Nevertheless, we find that the election eligibility laws are
years old.                                                        rationally related to preserving the competency of the
                                                                  judiciary.
   After the parties filed cross motions for summary judgment,
the district court granted summary judgment to Defendants.           Even if the election eligibility laws were insufficiently
The district court reasoned that the challenged state laws did    related to preserving the competency of the judiciary, the laws
not violate the Plaintiffs’ rights to equal protection because    are rationally related to other state purposes such as
the laws were rationally related to legitimate state objectives   promoting judicial efficiency and reducing partisan
of preserving judicial competency and enhancing                   appointments of judges. Disqualifying judicial candidates
administrative efficiency by reducing the disruption of mid-      over sixty-nine years of age promotes judicial efficiency by
term judicial vacancies (assuming the existence of a              avoiding the disruption in litigation from reassigning cases
mandatory age retirement alternative) and promoting the           because of mid-term judicial vacancies, assuming an alternate
electorate's preferences by reducing the need for partisan        mandatory age-retirement scheme. Further, the laws also
gubernatorial appointments.                                       avoid the additional cost of conducting special judicial
                                                                  elections. Moreover, limiting candidates to those who are
                     II. DISCUSSION                               able to serve an entire term, again assuming alternative
                                                                  mandatory age retirement, furthers the electorate's choice of
  Plaintiffs concede that preserving the competency of the        its judges by reducing the necessity of filling mid-term
judiciary by eliminating older judges may be a legitimate goal    judicial vacancies from mandatory retirements with partisan
of the state. However, they contend that the laws are not         gubernatorial appointments. See Mich. Comp. Laws
rationally related to this goal because they eliminate only       §§ 168.404, 168.409j, 168.424, 168.444, 168.467m. Because
those people who turn seventy on or before the election but       the election eligibility laws are rationally related to these
not those who are sixty-nine or younger on the election day       objectives, the laws do not violate Plaintiffs' rights to equal
and could possibly serve until they are seventy-six years old.    protection.
  Defendants respond that Michigan's age-eligibility election                         III. CONCLUSION
laws are sufficiently related to preserving judicial competency
because under rational basis review the Equal Protection            Accordingly, we AFFIRM the district court's grant of
Clause does not require absolute precision in classifying         summary judgment to Defendants.
otherwise similarly situated groups where distinctions are
8      Breck, et al. v. State of Michigan, et al.   No. 99-1628    No. 99-1628     Breck, et al. v. State of Michigan, et al.       5

because the classifications made by its laws are imperfect"        warranted. Defendants also maintain that the age-eligibility
(quoting Murgia, 427 U.S. at 316, in turn quoting Dandridge        election laws are rationally related to other legitimate state
v. Williams, 397 U.S. 471, 485 (1970))). In Murgia, the Court      goals, such as promoting administrative efficiency by
applied rational basis scrutiny and upheld the mandatory           eliminating the disruption of mid-term vacancies (assuming
retirement of state police officers at age fifty over an equal     an alternate mandatory age retirement scheme) and advancing
protection challenge. The Court commented "that the                the voters' choice of judicial candidates by reducing the
drawing of lines that create distinctions is peculiarly a          opportunity for mid-term gubernatorial appointments.
legislative task and an unavoidable one. Perfection in making
the necessary classifications is neither possible nor                 This Court reviews de novo a trial court's grant of summary
necessary." Murgia, 427 U.S. at 314 (citing Dandridge, 397         judgment. See Brooks v. American Broadcast Cos., 932 F. 2d
U.S. at 485). In Vance, 440 U.S. at 109, the Court again           495, 500 (6th Cir. 1991). Summary judgment may be granted
applied rational basis scrutiny and upheld mandatory               if there is no genuine issue of material fact and defendant is
retirement for federal Foreign Service employees over an           entitled to judgment as a matter of law. See Maddox v.
equal protection challenge. The Vance Court acknowledged           University of Tennessee, 62 F.3d 843, 854 (6th Cir. 1995).
and accepted some imprecision in the classification:               We agree with the Defendants and affirm the decision of the
                                                                   district court for the following reasons.
    Even if the classification involved here is to some extent
    both underinclusive and overinclusive, and hence the line         Rational basis scrutiny applies to equal protection
    drawn by Congress imperfect, it is nevertheless the rule       challenges to mandatory age-retirement statutes. See Gregory
    that in a case like this "perfection is by no means            v. Ashcroft, 501 U.S. 452 (1991). In Gregory, the plaintiffs,
    required."     The provision "does not offend the              state judges, challenged the Missouri Constitution’s
    Constitution simply because the classification <is not         mandatory retirement provision for judges at age seventy.
    made with mathematical nicety . . . .'"                        After litigation in the Missouri state courts, the United States
                                                                   Supreme Court applied rational basis scrutiny and found that
Vance, 440 U.S. at 108 (citations omitted).                        the Missouri Constitution did not violate the Equal Protection
                                                                   Clause. The Supreme Court applied rational basis scrutiny
  Further, the Supreme Court has recognized and accepted           because age is not a suspect classification under the Equal
that some classifications have unnecessary and harsh results.      Protection Clause and because candidacy for judicial office
In Matthews v. Diaz, 426 U.S. 67 (1976), aliens were denied        does not implicate any fundamental right. See id. at 470.
federal aid because they did not satisfy a residency
requirement. The Court upheld the eligibility requirements:          The Sixth Circuit addressed a case very similar to the
                                                                   present case and also applied the rational basis test. See
    [I]t remains true that some line is essential, that any line   Zielasko v. State of Ohio, 873 F.2d 957 (6th Cir. 1989). In
    must produce some harsh and apparently arbitrary               Zielasko, the Ohio Constitution prohibited people over sixty-
    consequences . . . . The task of classifying persons . . .     nine years old from standing for election to judicial office.
    inevitably requires that some persons who have an almost       This Court applied rational basis scrutiny:
    equally strong claim to favored treatment be placed on
    different sides of that line; the differences between the        [T]he threshold question in deciding an equal protection
    eligible and ineligible are differences in degree rather         claim is to decide the appropriate level of scrutiny to
    than differences in the character of their respective            apply to the restriction or classification at issue. In most
    claims. When this kind of policy choice must be made,            cases distinctions and classifications "need only be drawn
6      Breck, et al. v. State of Michigan, et al.    No. 99-1628    No. 99-1628     Breck, et al. v. State of Michigan, et al.      7

    in such a manner as to bear some rational relationship to       irrelevant." See Vance v. Bradley, 440 U.S. 93, 109 (1979)
    a legitimate state end." Departure from this rational           (citing Califano v. Jobst, 434 U.S. 47, 56-58 (1977)).
    relationship test is permitted "only when the challenged
    statute places burdens upon 'suspect classes' of persons or        In Gregory, the Supreme Court recognized any one of the
    on a constitutional right that is deemed to be                  following objectives as a sufficient rational basis to sustain a
    'fundamental.'" In such an instance courts are to apply         mandatory retirement provision for judges against an equal
    strict scrutiny, that is, "'scrutiny' more vigorous than that   protection challenge: (1) avoiding tedious and difficult
    which the traditional principles would require." The            individualized review of physical and mental qualifications;
    district court correctly found that the rational relationship   (2) increasing opportunity for judicial office and orderly
    test was applicable to this case because age is not a           attrition through retirement; and (3) promoting predictability
    "suspect" classification, and because, contrary to              and ease in administration of pension plans. See Gregory,
    Zielasko and Bowman's assertions, running for office is         501 U.S. at 471-72.
    not a "fundamental right."
                                                                      In applying rational basis scrutiny in Zielasko, this Court
Id. at 959 (citations omitted). The present case involves both      recognized mandatory retirement as rationally related to
candidacy for judicial office and a candidate’s age.                several legitimate state interests such as creating openings for
Accordingly, we will apply rational basis scrutiny to               younger judges, easing court dockets by creating a pool of
Plaintiffs’ equal protection claim.                                 part-time judges, and reducing age-related incompetence of
                                                                    some older judges. See Zielasko, 873 F.2d at 961 (citing State
   Rational basis scrutiny, a deferential review, only requires     ex rel. Keefe v. Eyrich, 489 N.E.2d 259 (Ohio 1986)).
a state of facts that provide a conceivable basis for the
classification. See Allied Stores v. Bowers, 358 U.S. 522, 530         In the present case, Defendants simply must show that the
(1959). To withstand constitutional review, the classification      age limitation on election eligibility is rationally related to a
simply must be rationally related to the goal or purpose of the     legitimate public purpose. Plaintiffs argue that the age-
classification. Minnesota v. Clover Leaf Creamery Co., 449          eligibility election laws violate the Equal Protection Clause
U.S. 456, 464 (1981). Rational basis review does not assess         because they are not rationally related to the state’s interest in
the wisdom of the challenged regulation. See Massachusetts          preserving judicial competency by eliminating candidates
Bd. of Retirement v. Murgia, 427 U.S. 307, 316 (1976)               who are over sixty-nine years old. Clearly, the laws only
(noting that the Court did not assess the wisdom of requiring       prohibit the election of people who are already seventy but do
police officers to retire at age fifty-five); see also Stiles v.    not prohibit the election of candidates who are sixty-nine or
Blunt, 912 F.2d 260, 267 (8th Cir. 1990) (applying rational         younger and might serve until they are seventy to seventy-six
basis review to Missouri’s minimum age requirement for state        years old. Nevertheless, Plaintiffs' arguments are not
legislative office while withholding the court’s own                persuasive for several reasons.
evaluation of the law's wisdom). Further, whether the
identified legitimate state interests were actually considered         The age-eligibility election laws are sufficiently rationally
in establishing the prohibition is irrelevant. See Flemming v.      related to preserving the competency of the Michigan
Nestor, 363 U.S. 603, 612 (1960); Zielasko, 873 F.2d at 961.        judiciary. Rational basis scrutiny of an equal protection
Likewise, whether a legislature "was unwise in not choosing         challenge tolerates some imprecision in classifying otherwise
a means more precisely related to its primary purpose is            similarly situated people where a state has determined that
                                                                    some distinction is warranted. See Gregory, 501 U.S. at 473
                                                                    (a state "does not violate the Equal Protection Clause merely
