W. Carrington Thompson, Harold H. Purcell, David Meadewhite, Stuart L. Craig, Appellants, v. Charles B. Walker, Matthew Blackwood, Stuart W. Connock, J.aubrey Houghton, Ray C. Hunt, Jr., Walter J. Mika,jr., Edwin C. Stone, the Virginia Statebar, Appellees, 758 F.2d 1004 (4th Cir. 1985)

Four former Virginia judges have brought suit for a declaration that certain provisions of the Commonwealth's judicial retirement system covering them are unconstitutional, both under the Equal Protection Clause of Amendment Fourteen of the Federal Constitution and under the Commonwealth Constitution. For reasons which follow, we agree with the district judge that the requested relief was properly denied, although we readily admit that the case has been put with great grace and skill. The district court opinions ruling adversely to the plaintiffs, which incorporate a dismissal of the suit and reaffirmance thereof, appear as Thompson v. Walker, 583 F. Supp. 175, 180 (E.D. Va. 1984).

An argument is advanced by the plaintiffs that disposition in the district court occurred too soon, before adequate development of the record. However, our review of the record satisfies us that the undisputed factual materials sufficed to allow full exploration and resolution of the matters which we have needed to consider.

The asserted violations of the Commonwealth Constitution do not present federal questions, and, in light of the disposition before trial of the federal questions raised, the district court was well within its discretion in declining to review them, there being no diversity of citizenship. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966) ("Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."). While we have given some attention to the questions pressed under the Constitution of the Commonwealth we have done so only to lay to rest any concern that an equal protection violation of the Fourteenth Amendment to the Federal Constitution may have lurked under the skirts of the supposed infractions of the Commonwealth Constitution.

The attack by the plaintiffs has been directed at the current pension arrangements which saw the light of day in 1970, replacing an earlier plan which antedated the elevation to the bench of all four of the plaintiffs. The current plan came into effect subsequent to the taking of judicial office by three of the plaintiffs. One plaintiff, W. Carrington Thompson, however, left private practice to serve as a circuit court judge and, subsequently, as a Supreme Court Justice, after July 1, 1970, the effective date of the pension plan currently in force.¹ 

The heart of the matter is that in 1970, a new and additional qualification restricting the right to practice law was introduced into the retirement system which would have to be met for a retired judge to qualify to receive benefits.²  Under Va.Code Sec. 51-179 (1982), a retired judge receiving retirement benefits would have to refrain from appearing in any court of the Commonwealth to plead on behalf of a client.³  Practice in federal courts, or in the courts of another state or of the District of Columbia, as far as matters appear to us, would not lead to ineligibility for the pension.⁴  Other lawyers, who had served the Commonwealth in several of its agencies, and were covered by similar pension provisions, were not subject to disqualification from retirement benefits should they practice in a court of the Commonwealth.⁵ 

The four plaintiffs have also called to our attention the provisions of the Virginia Constitution, Art. VI Sec. 4, which govern the matter of recall of retired judges to active service: "The Chief Justice of the Supreme Court ... may assign a retired judge of a court of record, with his consent, to any court of record except the Supreme Court." They then proceed to argue that Va.Code Sec. 51-178(d) conflicts with that Virginia constitutional provision since the legislature has undertaken to make recall obligatory for a retired judge under 70 years of age, while the power vested exclusively by Article VI Sec. 4 in Virginia's Chief Justice can only be exercised with the retired judge's consent.⁶ 

Next, proceeding on the assumption that retired Virginia judges, even those under 70 years of age, have a "right" to refuse recall in any and all cases, the plaintiffs contend that they can eliminate the possibility of any appearances of impropriety. They can prevent altogether any awkwardness of having a retired judge litigating on one side of the bench one day and adjudicating on the other side on the next. They assert they can do so simply by uniformly refusing to accept any recall assignment.

Even so, apart from jarring a bit against our more customary impression of judges, retired or other, as persons anxious to further, not to frustrate, the judicial process, the argument arouses no possibility of equal protection denial. It presents at most a question of state law. Whether recall is obligatory or discretionary, in either case the Virginia law would have a very adequate rational basis. The same may be said of Canon 8(C) of the Canons of Judicial Conduct of the Commonwealth of Virginia which makes inappropriate any litigation by a retired judge receiving retirement benefits in a court of the Commonwealth.⁷ 

The point is that Virginia acted reasonably in setting up its recall system, whether it be obligatory or merely discretionary, for retired judges under 70 years of age. In either event, the making of a provision calling for retaining of a right--total or limited--to recall judges makes sense. Retired judges are not treated unfairly in being asked to serve on recall inasmuch as they are already receiving--or are entitled to receive--pension benefits designed to cover customary living expenses. Actual expenses incurred in performing recall services are mandated. Va.Code Sec. 17-7. Though a recalled judge may in some senses "make" less than a judge in regular active service, any such consideration loses importance when it is appreciated that the number of days worked in a year by a recalled retired judge, as things uniformly operate, will, as a practical matter, be substantially less than the number of days worked in a like period of time by a judge on regular active service. Va.Code Sec. 51-178 permits the Chief Justice of the Virginia Supreme Court to recall a retired judge to hear a particular case or to serve not in excess of 90 days in any calendar year. Moreover, a retired judge on recall receives supplementary per diem payments. Va.Code Sec. 51-178(f).

It is entirely reasonable to provide sanctions to discourage retired judges from acting as litigators, whether or not they serve on a recall basis. The inopportune circumstances are more glaring, perhaps, when someone, having just acted as a judge appears the next day before a fellow judge, this time on behalf of a client. But the situation may also create infelicitous impressions even though the retired judge refuses altogether to sit, since he still will have emerged, in the public's eye, from the same mould, the same "club," as the active judges regularly sitting with the result that an unfair advantage may be perceived.

In view of considerations of that nature, it is also an eminently reasonable distinction to allow non-judicial retirees to litigate in courts of the Commonwealth without having to forego their pensions, while retired judges who insist on litigating must do without. Judges have sat at the adjudicating level. An assistant Commonwealth attorney general, or a legal advisor to a state regulatory commission, has not. The general populace, in the latter case, is not likely to perceive any unhealthy relationship by which one side to a legal fire-fight has an unfair "camaraderie" advantage. But for counsel who previously has, himself, or herself, been a judge the situation is manifestly otherwise.⁸  The fact that the lawyer for the other side once was a judge could reasonably have been expected by the legislature not to have sat well with an opponent, especially a losing opponent. That might well be the case even though the retired judge had not performed a judicial function for several years.⁹ 

Furthermore, the legislature need not be deemed to have intended to encourage non-acceptance of recall by making it financially more rewarding for those who take such a stance. It would not further the proper and clearly indicated legislative objective of maintaining a ready pool of retired judges to help out in times of peak judicial loads to construe the law to permit retired judges adamantly to refuse any recall assignment, in order to guarantee that pension benefits would still be paid, even were they to appear as counsel in Commonwealth courts. Accordingly, we do not subscribe to the notion that the legislature has intended such an interpretation. Nor do we perceive any legislative incentive to assist a judge to guarantee his pension payments by refusing his services to the Commonwealth, the party paying the pension benefits.¹⁰ 

The judge who, after a distinguished career, bringing honor to the bench, with the inevitable onslaught of time takes retirement should not be penalized should he be willing to accept occasional recalls which will permit continuance, at a reduced schedule, of the activities a) which have merited his identification as an exemplary member of the judiciary and b) whose performance will redound to the benefit of the Commonwealth.¹¹  The proper governance of a body politic requires just enough, but not too many judges. The practice of recalling retired judges should be encouraged, not discouraged, for it affords a flexibility, permitting the number of judges to fluctuate, according to need, without increasing the risk of periods when there might be too many active judges to be kept busy.¹² 

The plaintiffs further assert a liberty interest in the right to practice law and discrimination in the way in which the right is permitted to be practiced.¹³  We have sought to delineate the reasons which make the treatment of the plaintiffs, viewed alone or in comparison with other retirees who are not judges, fair and non-discriminatory. We deal with no "suspect" classifications or interference with any "fundamental" right.¹⁴  If the case should be decided on the basis of the rational basis test, the non-infringement of equal protection rights is readily apparent.¹⁵ 

In Justice Thompson's case, the condition of nonparticipation as a litigator, in Commonwealth courts if he, as a judicial retiree, were to receive the pension, was fully disclosed to him before he signed whatever passes for a contract of employment for a member of the judiciary. It does not shock the conscience for him to be held to the agreement which he freely entered.

For the other three plaintiffs, they, as far as the record discloses, were willing to accept the 1970 pension plan, with the consequent presumed increased benefits, when it entered into force. If such action accepting the 1970 plan occurred voluntarily and knowingly, their contracts, thus amended, were no different than the one binding Justice Thompson. The contracts explicitly provided that practice in Commonwealth courts and receipt of retirement benefits were mutually exclusive. If, indeed, however, the plaintiffs were accorded no alternative, no right to stay in the predecessor system under which the right to receive pension benefits was not conditioned on refraining from litigation, the three plaintiffs, Judges White, Craig, and Purcell, may, subject to the observations appearing in note 1, supra, seek relief in another suit, should one or more of them elect to bring one. We, of course, express no opinion as to how such a case would turn out.

AFFIRMED.