Another Reason for Guardposts on the Red River

As reported by the New York Times (registration required, sorry) and the Dallas Morning News today, Justice of the Oklahoma Supreme Court Marian Opala is suing his fellow justices in Federal court because they did not elect him Chief Justice. According to Opala, he is being discriminated against because of his age (83 years old) and is the victim of a plot between Chief Justice Joseph Watt and the "young Turks" (the youngest justice being 52).

Since I can hear what you are all thinking to yourself, I'll skip saying it and just move on to the salient point -- does he have a case?

The Federal Age Discrimination in Employment Act (ADEA), which is one of the largest factors in employment law on this matter, provides that employees over the age of forty must not be discriminated against in employment practices. In essence, it extends the protected classes created by the Civil Rights Act of 1964 and the antidiscrimination provisions thereof to include those over forty. Exceptions to this law are few and far between, the only ones really being the obvious "for cause" (you don't have to keep an incompetent employee because of their age) and established seniority systems. However, the established seniority systems exception has traditionally not been interpreted to force employers to promote employees strictly because of seniority unless that is the only factor in promotion decisions. In addition, the law does not force you to promote people who are older over those who are not.

Prior to November 4, 2004, the position of Chief Justice as a two-year term was selected by balloting among the justices, with the candidate qualifications being those with six or more years on the Court every two years and that no one could serve for two consecutive terms. On November 4th, the rule was changed so that those with four years of service were eligible and that Chief Justices could serve consecutive terms.

However, the problem with Opala's argument, in my opinion, is that the rule change
broadened the eligible candidate pool for an elected position. The previous rule, while imposing minimum qualifications, does not preclude the possibility of there being more than one qualified candidate -- which means Opala, in order to be elevated to the position, would still have had to win the vote in question.

In short, Opala has to prove two things -- that the other justices changed the rules specifically to harm him AND that the reason they did it was because of his age. My personal feeling is that this won't make it past the Western Oklahoma appellate court -- and that the voters who elected Opala last time will have a far larger candidate slate this time.

You can read the actual brief here, as well as Eugene Volokoh's more in-depth analysis on his blog.