author: Pm Curiam.

text:
    CITY OF NEW ORLEANS et al. v. DUKES, dba LOUISIANA CONCESSIONS
    No. 74-775.
    Argued November 11, 1975
    Decided June 25, 1976

      Joel P. Loeffelholz argued the cause for appellants. With him on the brief was Blake G. Arata.

      Joseph Neves Marcál III argued the cause and filed a brief for appellee.
   Pm Curiam.

The question presented by this case is whether the provision of a New Orleans ordinance, as amended in 1972, that excepts from the ordinance’s prohibition against vendors’ selling of foodstuffs from pushcarts in the Vieux Carre, or French Quarter, “vendors who have continuously operated the same business within the Vieux Carre ... for eight or more years prior to January 1, 1972 . . .” denied appellee vendor equal protection of the laws in violation of the Fourteenth Amendment.

Appellee operates a vending business from pushcarts throughout New Orleans but had carried on that business in the Vieux Carre for only two years when the ordinance was amended in 1972 and barred her from continuing operations there. She had previously filed an action in the District Court for the Eastern District of Louisiana attacking the validity of the former version of the ordinance, and amended her complaint to challenge the application of the ordinance’s “grandfather clause” — the eight-years-or-more provision — as a denial of equal protection. She prayed for an injunction and declaratory judgment. On cross-motions for summary judgment, the District Court, without opinion, granted appellant city’s motion. The Court of Appeals for the Fifth Circuit reversed. 501 F. 2d 706 (1974). We postponed the question of this Court’s jurisdiction to a hearing on the merits, 421 U. S. 908 (1975). We hold that we have jurisdiction of appellant’s appeal, and on the merits reverse the judgment of the Court of Appeals.

The Yieux Carre of the city of New Orleans is the heart of that city’s considerable tourist industry and an integral component of the city’s economy. The sector plays a special role in the city’s life, and pursuant to the Louisiana State Constitution, c. 8 of Art. V of the city’s Home Rule Charter grants the New Orleans City Council power to enact ordinances designed to preserve its distinctive charm, character, and economic vitality.

Chapter 46 of the Code of the City of New Orleans sets up a comprehensive scheme of permits for the conduct of various businesses in the city. In 1972, the Code was amended to restrict the validity of many of these permits to points outside the Vieux Carre. However, even as to those occupations — including all pushcart food vendors — which were to be banned from the Vieux Carre during seasons other than Mardi Gras, the City Council made the “grandfather provision” exception. Two pushcart food vendors — one engaged in the sale of hot dogs and the other an ice cream vendor — had operated in the Vieux Carre for 20 or more years and therefore qualified under the “grandfather clause” and continued to operate there. The Court of Appeals recognized the “City Council’s legitimate authority generally to regulate business conducted on the public streets and sidewalks of the Vieux Carre in order to preserve the appearance and custom valued by the Quarter’s residents and attractive to tourists,” 501 F. 2d, at 709, but nevertheless found that the Council’s justification for the “grandfather” exception was “insufficient to support the discrimination imposed” and thus deprived appellee of equal protection. Id., at 711. Stating expressly that this Court’s decision in Morey v. Doud, 354 U. S. 457 (1957), was “our chief guide in resolving this case,” 501 F. 2d, at 710, the Court of Appeals focused on the “exclusionary character” of the ordinance and its concomitant “creation of a protected monopoly for the favored class member.” Id., at 712-713. The “pivotal defect” in the statutory scheme was perceived to be the fact that the favored class members need not “continue to operate in a manner more consistent with the traditions of the Quarter than would any other operator,” id., at 711, and the fact that there was no reason to believe that length of operation “instills in the [favored] licensed vendors (or their likely transient operators) the kind of appreciation for the conservation of the Quarter’s tradition” that would cause their operations to become or remain consistent with that tradition. Id., at 712. Because these factors demonstrated the “insubstantiality of the relation between the nature of the discrimination and the legitimate governmental interest in conserving the traditional assets of the Yieux Carre/’ id., at 713, the ordinance was declared violative of equal protection as applied and the case was remanded for a determination of the severability of the “grandfather clause” from the remainder of the ordinance.

I

The question of this Court’s jurisdiction to hear the appeal need detain us only briefly. Title 28 XJ. S. C. § 1254 (2) grants jurisdiction to review decisions of the courts of appeals

“[b]y appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States . . . .”

A municipal ordinance is a “State statute” for purposes of this provision. See Doran v. Salem Inn, Inc., 422 U. S. 922, 927 n. 2 (1975); United Gas Co. v. Ideal Cement Co., 369 U. S. 134 (1962). See also, e. g., Dusch v. Davis, 387 U. S. 112 (1967); Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77 (1958); City of Detroit v. Murray Corp., 355 U. S. 489 (1958).

However, it is argued that the Court of Appeals’ decision is not “final” under the doctrine enunciated in Slaker v. O’Connor, 278 U. S. 188 (1929) (involving predecessor statute to § 1254 (2)), and South Carolina Electric & Gas Co. v. Flemming, 351 U. S. 901 (1956) {per curiam), since the Court of Appeals, although finding the statute unconstitutional as applied, remanded the case to the District Court for a determination as to the severa-bility of the “grandfather provision.” There may be some question as to the continuing vitality of the “finality” requirement in the context of § 1254 (2), which unlike such jurisdictional statutes as 28 U. S. C. §§ 1257 and 1291 has no “finality” provision in the statute itself. See, e. g., Doran v. Salem Inn, Inc., supra, at 927; Chicago v. Atchison, T. & S. F. R. Co., supra, at 82-83. But without resolving that question, we believe that any “finality” test is met under the facts of this ease.

The unconstitutionality of the ordinance, in its application to appellee, has been definitely and finally adjudicated by the Court of Appeals, and only a state-law question remains to be decided on remand — whether the statute will be totally invalidated or whether only its “grandfather provision” will be struck down. There is no federal, much less constitutional, question which is yet to be resolved below, and the policy underlying § 1254 (2) — ensuring that state laws are not erroneously invalidated — will in no way be served by further delay in adjudicating the constitutional issue presented. Moreover, since the outcome of the severability question will not moot a difficult constitutional issue in this case, the policy of avoiding needless constitutional decisions would not be furthered by staying our hand. Furthermore, to the extent any “finality” requirement in the context of § 1254 (2) might be premised on the policies of avoiding piecemeal appeals or the rendering of advisory opinions, neither difficulty is likely to eventuate in this case; even if we were to uphold the Court of Appeals’ remand for a determination of the severability of the “grandfather provision” under state law, the ruling on remand is not one which would be subject to further review in this Court. On the other hand, a decision by this Court rejecting the constitutional challenge to the statute will obviate the need for further proceedings and bring to a halt the continued disruption of the city’s internal economic affairs. Cf. generally, e. g., Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 476-478, 480, 485-486 (1975). We accordingly hold that this appeal is properly before us under 28 U. S. C. § 1254 (2). We therefore turn to the merits.

II

The record makes abundantly clear that the amended ordinance, including the “grandfather provision/’ is solely an economic regulation aimed at enhancing the vital role of the French Quarter’s tourist-oriented charm in the economy of New Orleans.

When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. See, e. g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356 (1973). Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may He made with substantially less than mathematical exactitude. ’"'Legislatures may implement their program "step by step, Katzenbach v. Morgan, 384 U. S. 641 (1966), in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. See, e. g., Williamson v. Lee Optical Co., 348 U. S. 483, 488-489 (1955). In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines, see, e. g., Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952); in the local economic sphere, it is only the invidious discrimination., the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment. See, e. g., Ferguson v. Skrupa, 372 U. S. 726, 732 (1963).

The Court of Appeals held in this case, however, that the “grandfather provision” failed even the rationality test. We disagree. The city’s classification rationally furthers the purpose which the Court of Appeals recognized the city had identified as its objective in enacting the provision, that is, as a means “to preserve the appearance and custom valued by the Quarter’s residents and attractive to tourists.” 501 F. 2d, at 709. The legitimacy of that objective is obvious. The City Council plainly could further that objective by making the reasoned judgment that street peddlers and hawkers tend to interfere with the charm and beauty of a historic area and disturb tourists and disrupt their enjoyment of that charm and beauty, and that such vendors in the Vieux Carre, the heart of the city’s tourist industry, might thus have a deleterious effect on the economy of the city. They therefore determined that to ensure the economic vitality of that area, such businesses should be substantially curtailed in the Vieux Carre, if not totally banned.

It is suggested that the “grandfather provision,” allowing the continued operation of some vendors was a, totally arbitrary and irrational method of achieving the city’s purpose. But rather than proceeding by the immediate and absolute abolition of all pushcart food vendors, the city could rationally choose initially to eliminate vendors of more recent vintage. This gradual approach to the problem is not constitutionally impermissible. The governing constitutional principle was stated in Katzenbach v. Morgan, supra, at 657:

“[W]e are guided by the familiar principles that a 'statute is not invalid under the Constitution because it might have gone farther than it did,’ Roschen v. Ward, 279 U. S. 337, 339, that a legislature need not 'strike at all evils at the same time,’ Semler v. Dental Examiners, 294 U. S. 608, 610, and that 'reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,’ Williamson v. Lee Optical Co., 348 U. S. 483, 489.”

The city could reasonably decide that newer businesses were less likely to have built up substantial reliance interests in continued operation in the Vieux Carre and that the two vendors who qualified under the “grandfather clause” — both of whom had operated in the area for over 20 years rather than only eight — had themselves become part of the distinctive character and charm that distinguishes the Vieux Carre. We cannot say that these judgments so lack rationality that they constitute a constitutionally impermissible denial of equal protection.

Nevertheless, relying on Morey v. Doud, 354 U. S. 457 (1957), as its “chief guide,” the Court of Appeals held that even though the exemption of the two vendors was rationally related to legitimate city interests on the basis of facts extant when the ordinance was amended, the “grandfather clause” still could not stand because “the hypothesis that a present eight year veteran of the pushcart hot dog market in the Yieux Carre will continue to operate in a manner more consistent with the traditions of the Quarter than would any other operator is without foundation.” 501 F. 2d, at 711. Actually, the reliance on the statute's potential irrationality in Morey v. Doud, as the dissenters in that case correctly pointed out, see 354 U. S., at 474-475 (Frankfurter, J., joined by Harlan, J., dissenting), was a needlessly intrusive judicial infringement on the State's legislative powers, and we have concluded that the equal protection analysis employed in that opinion should no longer be followed. Morey was the only case in the last half century to invalidate a wholly economic regulation solely on equal protection grounds, and we are now satisfied that the decision was erroneous. Morey is, as appellee and the Court of Appeals' properly recognized, essentially indistinguishable from this case, but the decision so far departs from proper equal protection analysis in cases of exclusively economic regulation that it should be, and it is, overruled.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Marshall concurs in the judgment.

Mr. Justice Stevens took no part in the consideration or decision of this case.

       The pertinent provision of the New Orleans ordinance, c. 46, §§ 1 and 1.1 of the Code of the City of New Orleans, as amended August 31, 1972, provides:
      “Vendors who have continuously operated the same business within the Vieux Carre under the authority of this Chapter for eight or more years prior to January 1, 1972 may obtain a valid permit to operate such business within the Vieux Carre.”

       Most of appellee’s sales, particularly during the summer months, were made in the Yieux Carre.

       Jurisdiction was invoked pursuant to 28 U. S. C. §§ 1331, 1343 (3), (4), and 2201-2202. The equal protection violation was alleged to constitute a violation of 42 U. S. C. §§ 1983, 1985.

       See generally 2 App. 31-63 (Excerpts from Comprehensive Study Plan and Program for the Vieux Carre Under a Demonstration Grant from Department of Housing and Urban Development).

        Ferguson presented an analogous situation. There, a Kansas statute excepted lawyers from the prohibition of a statute making it a misdemeanor for any person to engage in the business of debt adjusting. We held that the exception of lawyers was not a denial of equal protection, stating, 372 U. S., at 732:
      “Nor is the statute’s exception of lawyers a denial of equal protection of the laws to nonlawyers. Statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination’ which offends the Constitution. ... If the State of Kansas wants to limit debt adjusting to lawyers, the Equal Protection Clause does not forbid it” (footnote omitted).
      We emphasize again that these principles, of course, govern only when no constitutional provision other than the Equal Protection Clause itself is apposite. Very different principles govern even economic regulation when constitutional provisions such as the Commerce Clause are implicated, or when local regulation is challenged under the Supremacy Clause as inconsistent with relevant federal laws or treaties.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Marshall,

license: Public Domain

text:
    MASSACHUSETTS BOARD OF RETIREMENT et al. v. MURGIA
    No. 74-1044.
    Argued December 10, 1975
    Decided June 25, 1976

      Terence P. O’Malley, Assistant Attorney General of Massachusetts, argued the cause for appellants. With him on the brief were Francis X. Bellotti, Attorney General, and S. Stephen Rosenfeld and Margot Botsford, Assistant Attorneys General.

      Robert D. City argued the cause and filed a brief for appellee.

        Henry Friedman filed a brief for the State Police Association of Massachusetts as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by James A. Lanigan, Alfred Miller, and Stephen L. Solomon for the American Association of Retired Persons et al.; by Howard Eglit, Jonathan A. Weiss, and Melvin Wvlf for Legal Services for the Elderly Poor et al.; by Thomas K. Gilhool and Edwin D. Wolf for the Older and Middle Age Worker Ombudsman Pilot Project of United Communities of Southeastern Philadelphia et al.; by James J. McNamara for the American Medical Association; and by Melvin S. Louison for Lieutenant Lawrence Carter et al.

   Per Curiam.

This case presents the question whether the provision of Mass. Gen. Laws Ann. c. 32, § 26 (3) (a) (1966), that a uniformed state police officer “shall be retired . . . upon his attaining age fifty,” denies appellee police officer equal protection of the laws in violation of the Fourteenth Amendment.

Appellee Robert Murgia was an officer in the Uniformed Branch of the Massachusetts State Police. The Massachusetts Board of Retirement retired him upon his 50th birthday. Appellee brought this civil action in the United States District Court for the District of Massachusetts, alleging that the operation of § 26 (3) (a) denied him equal protection of the laws and requesting the convening of a three-judge court under 28 U. S. C. §§ 2281, 2284. The District Judge dismissed appellee’s complaint on the ground that the complaint did not allege a substantial constitutional question. 345 F. Supp. 1140 (1972), On appeal, the United States Court of Appeals for the First Circuit, in an unreported memorandum, set aside the District Court judgment and remanded the case with direction to convene a three-judge court. Upon a record consisting of depositions, affidavits, and other documentary material submitted by the parties, the three-judge court filed an opinion that declared § 26 (3) (a) unconstitutional on the ground that “a classification based on age 50 alone lacks a rational basis in furthering any substantial state interest,” and enjoined enforcement of the statute. 376 F. Supp. 753, 754 (1974). We noted probable jurisdiction, 421 U. S. 974 (1975), and now reverse.

The primary function of the Uniformed Branch of the Massachusetts State Police is to protect persons and property and maintain law and order. Specifically, uniformed officers participate in controlling prison and civil disorders, respond to emergencies and natural disasters, patrol highways in marked cruisers, investigate crime, apprehend criminal suspects, and provide backup support for local law enforcement personnel. As the District Court observed, “service in this branch is, or can be, arduous.” 376 F. Supp., at 754. “[H]igh versatility is required, with few, if any, backwaters available for the partially superannuated.” Ibid. Thus, “even [appellee’s] experts concede that there is a general relationship between advancing age and decreasing physical ability to respond to the demands of the job.” Id., at 755.

These considerations prompt the requirement that uniformed state officers pass a comprehensive physical examination biennially until age 40. After that, until mandatory retirement at age 50, uniformed officers must pass annually a more rigorous examination, including an electrocardiogram and tests for gastro-intestinal bleeding. Appellee Murgia had passed such an examination four months before he was retired, and there is no dispute that, when he retired, his excellent physical and mental health still rendered him capable of performing the duties of a uniformed officer.

The record includes the testimony of three physicians: that of the State Police Surgeon, who testified to the physiological and psychological demands involved in the performance of uniformed police functions; that of an associate professor of medicine, who testified generally to the relationship between aging and the ability to perform under stress; and that of a surgeon, who also testified to aging and the ability safely to perform police functions. The testimony clearly established that the risk of physical failure, particularly in the cardiovascular system, increases with age, and that the number of individuals in a given age group incapable of performing stress functions increases with the age of the group. App. 77-78, 174-176. The testimony also recognized that particular individuals over 50 could be capable of safely performing the functions of uniformed officers. The associate professor of medicine, who was a witness for the appellee, further testified that evaluating the risk of cardiovascular failure in a given individual would require a number of detailed studies. Id., at 77-78.

In assessing appellee’s equal protection claim, the District Court found it unnecessary to apply a strict-scrutiny test, see Shapiro v. Thompson, 394 U. S. 618 (1969), for it determined that the age classification established by the Massachusetts statutory scheme could not in any event withstand a test of rationality, see Dandridge v. Williams, 397 U. S. 471 (1970). Since there had been no showing that reaching age 50 forecasts even “imminent change” in an officer’s physical condition, the District Court held that compulsory retirement at age 50 was irrational under a scheme that assessed the capabilities of officers individually by means of comprehensive annual physical examinations. We agree that rationality is the proper standard by which to test whether compulsory retirement at age 50 violates equal protection. We disagree, however, with the District Court’s determination that the age 50 classification is not rationally related to furthering a legitimate state interest.

I

We need state only briefly our reasons for agreeing that strict scrutiny is not the proper test for determining whether the mandatory retirement provision denies, appellee equal protection. San Antonio School District v. Rodriguez, 411 U. S. 1, 16 (1973), reaffirmed that equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Mandatory retirement at age 50 under the Massachusetts statute involves neither situation.

This Court’s decisions give no support to the proposition that a right of governmental employment per se is fundamental. See San Antonio School District v. Rodriguez, supra; Lindsey v. Normet, 405 U. S. 56, 73 (1972); Dandridge v. Williams, supra, at 485. Accordingly, we have expressly stated that a standard less than strict scrutiny “has consistently been applied to state legislation restricting the availability of employment opportunities.” Ibid.

Nor does the class of uniformed state police officers over 50 constitute a suspect class for purposes of equal protection analysis. Rodriguez, supra, at 28, observed that a suspect class is one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a “history of purposeful unequal treatment” or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. The class subject to the compulsory retirement feature of the Massachusetts statute consists of uniformed state police officers over the age of 50. It cannot be said to discriminate only against the elderly. Rather, it draws the line at a certain age in middle life. But even old age does not define a “discrete and insular” group, United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938), in need of “extraordinary protection from the majoritarian political process.” Instead, it marks a stage that each of us will reach if we live out our normal span. Even if the statute could be said to impose a penalty upon a class defined as the aged, it would not impose a distinction sufficiently akin to those classifications that we have found suspect to call for strict judicial scrutiny.

Under the circumstances, it is unnecessary to subject the State’s resolution of competing interests in this case to the degree of critical examination that our cases under the Equal Protection Clause recently have characterized as “strict judicial scrutiny.”

II

We turn then to examine this state classification under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v. Williams, supra, at 485. Such action by a legislature is presumed to be valid.

In this case, the Massachusetts statute clearly meets the requirements of the Equal Protection Clause, for the State’s classification rationally furthers the purpose identified by the State: Through mandatory retirement at age 50, the legislature seeks to protect the public by assuring physical preparedness of its uniformed police. Since physical ability generally declines with age, mandatory retirement at 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age. This clearly is rationally related to the State’s objective. There is no indication that § 26 (3) (a) has the effect of excluding from service so few officers who are in fact unqualified as to render age 50 a criterion wholly unrelated to the objective of the statute.

That the State chooses not to determine fitness more precisely through individualized testing after age 50 is not to say that the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation. It is only to say that with regard to the interest of all concerned, the State perhaps has not chosen the best means to accomplish this purpose. But where rationality is the test, a State “does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” Dandridge v. Williams, 397 U. S., at 485.

We do not make light of the substantial economic and psychological effects premature and compulsory retirement can have on an individual; nor do we denigrate the ability of elderly citizens to continue to contribute to society. The problems of retirement have been well documented and are beyond serious dispute. But “[w]e do not decide today that the [Massachusetts statute] is wise, that it best fulfills the relevant social and economic objectives that [Massachusetts] might ideally espouse, or that a more just and humane system could not be devised.” Id., at 487. We decide only that the system enacted by the Massachusetts Legislature does not deny appellee equal protection of the laws.

The judgment is reversed.

Mb. Justice Stevens took no part in the consideration or decision of this case.

Mr. Justice Marshall,

dissenting.

Today the Court holds that it is permissible for the Commonwealth of Massachusetts to declare that members of its state police force who have been proved medically fit for service are nonetheless legislatively unfit to be policemen and must be terminated — involuntarily “retired” — because they have reached the age of 50. Although we have called the right to work “of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure,” Truax v. Raich, 239 U. S. 33, 41 (1915), the Court finds that the right to work is not a fundamental right. And, while agreeing that “the treatment of the aged in this Nation has not been wholly free of discrimination,” ante, at 313, the Court holds that the elderly are not a suspect class. Accordingly, the Court undertakes the scrutiny mandated by the bottom tier of its two-tier equal protection framework, finds the challenged legislation not to be “wholly unrelated” to its objective, and holds, therefore, that it survives equal protection attack. I respectfully dissent. '

I

Although there are signs that its grasp on the law is weakening, the rigid two-tier model still holds sway as the Court’s articulated description of the equal protection test. Again, I must object to its perpetuation. The model’s two fixed modes of analysis, strict scrutiny and mere rationality, simply do not describe the inquiry the Court has undertaken — or should undertake — in equal protection cases. Rather, the inquiry has been much more sophisticated and the Court should admit as much. It has focused upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the state interests asserted in support of the classification. Marshall v. United States, 414 U. S. 417, 432-433 (1974) (Marshall, J., dissenting) ; San Antonio School District v. Rodriguez, 411 U. S. 1, 98-110 (1973) (Marshall, J., dissenting); Richardson v. Belcher, 404 U. S. 78, 90-91 (1971) (Marshall, J., dissenting); Dandridge v. Williams, 397 U. S. 471, 519-530 (1970) (Marshall, J., dissenting). See also City of Charlotte v. Firefighters, 426 U. S. 283, 286 (1976); Memorial Hospital v. Maricopa County, 415 U. S. 250, 253-254 (1974); Dunn v. Blumstein, 405 U. S. 330, 335 (1972); Kramer v. Union School Dist., 395 U. S. 621, 626 (1969); Williams v. Rhodes, 393 U. S. 23, 30 (1968).

Although the Court outwardly adheres to the two-tier model, it has apparently lost interest in recognizing further “fundamental” rights and “suspect” classes. See San Antonio School District v. Rodriguez, supra (rejecting education as a fundamental right); Frontiero v. Richardson, 411 U. S. 677 (1973) (declining to treat women as a suspect class). In my view, this result is the natural consequence of the limitations of the Court’s traditional equal protection analysis. If a statute invades a “fundamental” right or discriminates against a “suspect” class, it is subject to strict scrutiny. If a statute is subject to strict scrutiny, the statute always, or nearly always, see Korematsu v. United States, 323 U. S. 214 (1944), is struck down. Quite obviously, the only critical decision is whether strict scrutiny should be invoked at all. It should be no surprise, then, that the Court is hesitant to expand the number of categories of rights and classes subject to strict scrutiny, when each expansion involves the invalidation of virtually every classification bearing upon a newly covered category.

But however understandable the Court’s hesitancy to invoke strict scrutiny, all remaining legislation should not drop into the bottom tier, and be measured by the mere rationality test. For that test, too, when applied as articulated, leaves little doubt about the outcome; the challenged legislation is always upheld. See New Orleans v. Dukes, ante, p. 297 (overruling Morey v. Doud, 354 U. S. 457 (1957), the only modern case in which this Court has struck down an economic classification as irrational). It cannot be gainsaid that there remain rights, not now classified as “fundamental,” that remain vital to the flourishing of a free society, and classes, not now classified as “suspect,” that are unfairly burdened by invidious discrimination unrelated to the individual worth of their members. Whatever we call these rights and classes, we simply cannot forgo all judicial protection against discriminatory legislation bearing upon them, but for the rare instances when the legislative choice can be termed “wholly irrelevant” to the legislative goal. McGowan v. Maryland, 366 U. S. 420, 425 (1961).

While the Court’s traditional articulation of the rational-basis test does suggest just such an abdication, happily the Court’s deeds have not matched its words. Time and again, met with cases touching upon the prized rights and burdened classes of our society, the Court has acted only after a reasonably probing look at the legislative goals and means, and at the significance of the personal rights and interests invaded. Stanton v. Stanton, 421 U. S. 7 (1975); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); United States Dept. of Agriculture v. Moreno, 413 U. S. 528 (1973); Frontiero v. Richardson, 411 U. S., at 691 (Powell, J., concurring in judgment); James v. Strange, 407 U. S. 128 (1972); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Eisenstadt v. Baird, 405 U. S. 438 (1972); Reed v. Reed, 404 U. S. 71 (1971). See San Antonio School District v. Rodriguez, supra, at 98-110 (Marshall, J., dissenting). These cases make clear that the Court has rejected, albeit sub silentio, its most deferential statements of the rationality standard in assessing the validity under the Equal Protection Clause of much noneconomic legislation.

But there are problems with deciding cases based on factors not encompassed by the applicable standards. First, the approach is rudderless, affording no notice to interested parties of the standards governing particular cases and giving no firm guidance to judges who, as a consequence, must assess the constitutionality of legislation before them on an ad hoc basis. Second, and not unrelatedly, the approach is unpredictable and requires holding this Court to standards it has never publicly adopted. Thus, the approach presents the danger that, as I suggest has happened here, relevant factors will be misapplied or ignored. All interests not “fundamental” and all classes not “suspect” are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.

II

The danger of the Court’s verbal adherence to the rigid two-tier test, despite its effective repudiation of that test in the cases, is demonstrated by its efforts here. There is simply no reason why a statute that tells able-bodied police officers, ready and willing to work, that they no longer have the right to earn a living in their chosen profession merely because they are 50 years old should be judged by the same minimal standards of rationality that we use to test economic legislation that discriminates against business interests. See New Orleans v. Dukes, supra; Williamson v. Lee Optical Co., 348 U. S. 483 (1955). Yet, the Court today not only invokes the minimal level of scrutiny, it wrongly adheres to it. Analysis of the three factors I have identified above — the importance of the governmental benefits denied, the character of the class, and the asserted state interests— demonstrates the Court’s error.

Whether “fundamental” or not, “ ‘the right of the individual ... to engage in any of the common occupations of life’ ” has been repeatedly recognized by this Court as falling within the concept of liberty guaranteed by the Fourteenth Amendment. Board of Regents v. Roth, 408 U. S. 564, 572 (1972), quoting Meyer v. Nebraska, 262 U. S. 390, 399 (1923). As long ago as Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746 (1884), Mr. Justice Bradley wrote that this right “is an inalienable right; it was formulated as such under the phrase ‘pursuit of happiness’ in the Declaration of Independence .... This right is a large ingredient in the civil liberty of the citizen.” Id., at 762 (concurring opinion). And in Smith v. Texas, 233 U. S. 630 (1914), in invalidating a law that criminally penalized anyone who served as a freight train conductor without having previously served as a brakeman, and that thereby excluded numerous equally qualified employees from that position, the Court recognized that “all men are entitled to the equal protection of the law in their right to work for the support of themselves and families.” Id., at 641.

“In so far as a man is deprived of the right to labor his liberty is restricted, his capacity to earn wages and acquire property is lessened, and he is denied the protection which the law affords those who are permitted to work. Liberty means more than freedom from servitude, and the constitutional guarantee is an assurance that the citizen shall be protected in the right to use his powers of mind and body in any lawful calling.” Id., at 636.

See also Arnett v. Kennedy, 416 U. S. 134 (1974); Perry v. Sindermann, 408 U. S. 593 (1972); Bell v. Burson, 402 U. S. 535 (1971); Keyishian v. Board of Regents, 385 U. S. 589, 605-606 (1967); Schware v. Board of Bar Examiners, 353 U. S. 232, 238-239 (1957); Slochower v. Board of Higher Education, 350 U. S. 551 (1956); Wieman v. Updegraff, 344 U. S. 183 (1952); Truax v. Raich, 239 U. S., at 41. Even if the right to earn a living does not include the right to work for the government, it is settled that because of the importance of the interest involved, we have always carefully looked at the reasons asserted for depriving a government employee of his job.

While depriving any government employee of his job is a significant deprivation, it is particularly burdensome when the person deprived is an older citizen. Once terminated, the elderly cannot readily find alternative employment, The lack of work is not only economically damaging, but emotionally and physically draining. Deprived of his status in the community and of the opportunity for meaningful activity, fearful of becoming dependent on others for his support, and lonely in his new-found isolation, the involuntarily retired person is susceptible to physical and emotional ailments as a direct consequence of his enforced idleness. Ample clinical evidence supports the conclusion that mandatory retirement poses a direct threat to the health and life expectancy of the retired person, and these consequences of termination for age are not disputed by appellants. Thus, an older person deprived of his job by the government loses not only his right to earn a living, but, too often, his health as well, in sad contradiction of Browning’s promise: “The best is yet to be,/The last of life, for which the first was made.”

Not only are the elderly denied important benefits when they are terminated on the basis of age, but the classification of older workers is itself one that merits judicial attention. Whether older workers constitute a “suspect” class or not, it cannot be disputed that they constitute a class subject to repeated and arbitrary discrimination in employment. See United States Department of Labor, The Older American Worker: Age Discrimination in Employment (1965); M. Barron, The Aging American 55-68 (1961). As Congress found in passing the Age Discrimination in Employment Act of 1967:

“[I]n the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs[.]
“[T]he setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons [.]
“[T]he incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave[.]” 81 Stat. 602, 29 U. S. C. § 621 (a) (subsection numbers omitted).

See also ante, at 317 n. 11.

Of course, the Court is quite right in suggesting that distinctions exist between the elderly and traditional suspect classes such as Negroes, and between the elderly and “quasi-suspect” classes such as women or illegitimates. The elderly are protected not only by certain anti-discrimination legislation, but by legislation that provides them with positive benefits not enjoyed by the public at large. Moreover, the elderly are not isolated in society, and discrimination against them is not pervasive but is centered primarily in employment. The advantage of a flexible equal protection standard, however, is that it can readily accommodate such variables. The elderly are undoubtedly discriminated against, and when legislation denies them an important benefit — employment—I conclude that to sustain the legislation appellants must show a reasonably substantial interest and a scheme reasonably closely tailored to achieving that interest. Cf. San Antonio School District v. Rodriguez, 411 U. S., at 124-126 (Marshall, J., dissenting). This inquiry, ultimately, is not markedly different from that undertaken by the Court in Reed v. Reed, 404 U. S. 71 (1971).

Turning, then, to appellants’ arguments, I agree that the purpose of the mandatory retirement law is legitimate, and indeed compelling. The Commonwealth has every reason to assure that its state police officers are of sufficient physical strength and health to perform their jobs. In my view, however, the means chosen, the forced retirement of officers at age 50, is so overinclusive that it must fall.

All potential officers must pass a rigorous physical examination. Until age 40, this same examination must be passed every two years — when the officer re-enlists — and, after age 40, every year. Appellants have conceded that “[w]hen a member passes his re-enlistment or annual physical, he is found to be qualified to perform all of the duties of the Uniformed Branch of the Massachusetts State Police.” App. 43. See id., at 52. If a member fails the examination, he is immediately terminated or refused re-enlistment. Thus, the only members of the state police still on the force at age 50 are those who have been determined — repeatedly—by the Commonwealth to be physically fit for the job. Yet, all of these physically fit officers are automatically terminated at age 50. Appellants do not seriously assert that their testing is no longer effective at age 50, nor do they claim that continued testing would serve no purpose because officers over 50 are no longer physically able to perform their jobs. Thus the Commonwealth is in the position of already individually testing its police officers for physical fitness, conceding that such testing is adequate to determine the physical ability of an officer to continue on the job, and conceding that that ability may continue after age 50. In these circumstances, I see no reason at all for automatically terminating those officers who reach the age of 50; indeed, that action seems the height of irrationality.

Accordingly, I conclude that the Commonwealth’s mandatory retirement law cannot stand when measured against the significant deprivation the Commonwealth’s action works upon the terminated employees. I would affirm the judgment of the District Court.

       Uniformed state police officers are appointed under Mass. Gen. Laws Ann. c. 22, § 9A (Supp. 1976-1977), which provides:
      “Whenever the governor shall deem it necessary to provide more effectively for the protection of persons and property and for the maintenance of law and order in the commonwealth, he may authorize the commissioner to make additional appointments to the division of state police, together with such other employees as the governor may deem necessary for the proper administration thereof. . . . Said additional officers shall have and exercise within the commonwealth all the powers of constables, except the service of civil process, and of police officers and watchmen. ... No person who has not reached his nineteenth birthday nor any person who has passed his thirtieth birthday shall be enlisted for the first time as an officer of the division of state police, except that said maximum age qualification shall not apply in the ease of the enlistment of any woman as such an officer.”
      In pertinent part e. 32, § 26 (3), provides:

        “(a) ... Any . . . officer appointed under section nine A of chapter twenty-two . . . who has performed service in the division of state police in the department of public safety for not less than twenty years, shall be retired by the state board of retirement upon his attaining age fifty or upon the expiration of such twenty years, whichever last occurs.”

        “(b) Any . . . officer . . . who has performed service . . . for not less than twenty years and who has not attained . . . age fifty in the case of an officer appointed under the said section nine A, shall be retired by the state board of retirement in case the rating board, after an examination of such officer or inspector by a registered physician appointed by it, shall report in writing to the state board of retirement that he is physically or mentally incapacitated for the performance of duty and that such incapacity is likely to be permanent.”
      Since § 9A requires that new enlistees in the Uniformed Branch be no more than 30 years of age, few retirements are delayed past 50 until the expiration of 20 years’ service.
      The question presented in this case was summarily treated in Cannon v. Guste, 423 U. S. 918 (1975), aff’g No. 74^3211 (May 6, 1975, ED La.); Weisbrod v. Lynn, 420 U. S. 940 (1975), aff’g 383 F. Supp. 933 (DC 1974); Mcllvaine v. Pennsylvania, 415 U. S. 986 (1974), dismissing appeal from 454 Pa. 129, 309 A. 2d 801 (1973). Our cursory consideration in those cases does not, of course, foreclose this opportunity to consider more fully that question. See, e. g., Edelman v. Jordan, 415 U. S. 651, 670-671 (1974).

       Jurisdiction was invoked pursuant to 28 U. S. C. § 1343, and declaratory and injunctive relief was sought under 28 U. S. C. §§ 2201, 2202. The equal protection denial was alleged to constitute a violation of 42 U. S. C. § 1983. Appellee made no claim under the Federal Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U. S. C. § 621 et seq.

        E. g., Roe v. Wade, 410 U. S. 113 (1973) (right of a uniquely private nature); Bullock v. Carter, 405 U. S. 134 (1972) (right to vote); Shapiro v. Thompson, 394 U. S. 618 (1969) (right of interstate travel); Williams v. Rhodes, 393 U. S. 23 (1968) (rights guaranteed by the First Amendment); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942) (right to procreate).

       E. g., Graham v. Richardson, 403 U. S. 365 (1971) (alienage); McLaughlin v. Florida, 379 U. S. 184 (1964) (race); Oyama v. California, 332 U. S. 633 (1948) (ancestry).

       See, e. g., San Antonio School District v. Rodriguez, 411 U. S. 1, 40-41 (1973); Madden v. Kentucky, 309 U. S. 83, 88 (1940) ; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78-79 (1911).

       See San Antonio School District v. Rodriguez, supra, at 17.

       A special legislative commission’s report preceding the enactment of the age-50 maximum for uniformed police stated: “The Division of State Police, by virtue of the nature of the work demanded of its members, undoubtedly requires comparatively young men of vigorous physique. The nature of the duties to be performed in all weathers is arduous in the extreme .... No argument is needed to demonstrate that men above middle life are not usually physically able to perform such duties.” Mass. H. Doc. No. 1582, p. 8 (1938). With these considerations in mind, the State’s Commissioner of Public Safety argued before the commission for provisions permitting retirement of state police at 45. The commission observed in response that it was “not prepared to say that the contention of the Commissioner of Public Safety, that [state police] over age forty-five should be eligible [for] retirement, is unsound as a matter of public policy.” Ibid. The commission, however, deferred the problem of setting retirement ages for the state police to special study, their sole reason for not recommending age 45 being the anticipated pension costs to the State, not the reasonableness of the age with respect to job qualification. Id., at 7-9. Though the age-50 limitation was not specifically proposed by the commission, but was ultimately enacted by the legislature after further study, Act of Aug. 12, 1939, c. 503, § 3 (1939), Mass. Acts & Resolves 737-738 (1939), it is apparent that the purpose of the limitation was to protect the public by assuring the ability of state police to respond to the demands of their jobs. See also Mass. H. Doc. No. 5316, pp. 16-17 (1967); Mass. H. Doc. No. 2500, pp. 21, 23-25 (1955). This purpose is also clearly implied by the State’s maximum-age scheme, which sets higher mandatory retirement ages for less demanding jobs. See Mass. Gen. Laws Ann. c. 32, §§ 1, 3 (2) (g), 26 (3) (a) (1966 and Supp. 1975).

       Appellee seems to have suggested in oral argument that Mass. Gen. Laws Ann. c. 32, §§ 1, 3 (2) (g), 26 (3) (a), also deny equal protection through the job classification established by them. Tr. of Oral Arg. 14, 17-18. Any such argument, however, is unpersuasive. The sections do set a maximum retirement age for uniformed state officers which is less than that set for other law enforcement personnel. It has never been seriously disputed, if at all, however, that the work of uniformed state officers is more demanding than that of other state, or even municipal, law enforcement personnel. It is this difference in work demands that underlies the job classification. Mass. H, Doc. No. 2500, pp. 21-22 (1955).

       Review of Massachusetts' maximum-age limitations by state legislative commissions has proceeded on the principle that “maximum retirement age for any group of employees should be that age at which the efficiency of a large majority of the employees in the group is such that it is in the public interest that they retire.” Id., at 7.

       Indeed, were it not for the existing annual individual examinations through age 50, appellee would concede the rationality of mandatory retirement at 50. Tr. of Oral Arg. 22-23. The introduction of individual examinations, however, hardly defeats the rationality of the State’s scheme. In fact, it augments rationality since the legislative judgment to avoid the risk posed by even the healthiest 50-year-old officers would be implemented by annual individual examinations between ages 40 and 50 which serve to eliminate those younger officers who are not at least as healthy as the best 50-year-old officers.

         E. g., M. Barron, The Aging American (1961); Cameron, Neuroses of Later Maturity, in Mental Disorders in Later Life 201 (0. Kaplan, 2d ed. 1956); Senate Special Committee on Aging, Developments in Aging: 1971 and January-March 1972, S. Rep. No. 92-784, pp. 48-53 (1972); Hearings before the Subcommittee on Retirement and the Individual of the Senate Special Committee on Aging, 90th Cong., 1st Sess., pts. 1 and 2, pp. 36-46, 87-100, 121-127, 212-217, 464-471 (1967).

         Some classifications are so invidious that they should be struck down automatically absent the most compelling state interest, and by suggesting the limitations of strict-scrutdny analysis I do not mean to imply otherwise. The analysis should be accomplished, however, not by stratified notions of “suspect” classes and “fundamental” rights, but by individualized assessments of the particular classes and rights involved in each case. Of course, the traditional suspect classes and fundamental rights would still rank at the top of the list of protected categories, so that in eases involving those categories analysis would be functionally equivalent to strict scrutiny. Thus, the advantages of the approach I favor do not appear in such cases, but rather emerge in those dealing with traditionally less protected classes and rights. See infra, at 321-327.

       See also Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972).

       See Board of Regents v. Roth, 408 U. S. 564, 587 (1972) (Marshall, J., dissenting). Appellee makes no such claim; nor does he allege that procedural due process requires that he be afforded a hearing prior to termination.

         See American Medical Association, Committee on Aging, Retirement, A Medical Philosophy and Approach; M. Barron, The Aging American 76-86, and sources cited (1961). Because, as one former AMA president bluntly put it, “[d]eath comes at retirement,” quoted in M. Barron, id., at 76, the AMA has formally taken a position against involuntary retirement and has submitted an amicus brief in this ease to inform us of the medical consequences of the practice.

       R. Browning, Rabbi Ben Ezra, stanza 1.

       There may be an age at which passing a physical examination provides no substantial guarantee that the officer is fit for service for the coming year. In that case, the test has lost its predictive ability. There is no showing that age 50 marks such a line— although appellants ask us to hypothesize that it does — and indeed the evidence seems contrary to that supposition. First, among officers aged 40-49, who undergo yearly examinations, there is no general trend of increasing rejections with age nor any suggestion that those who passed the examination served in less than a satisfactory manner. 376 F. Supp. 753, 756 (Mass. 1974).
      This evidence presents no reason to assume that testing suddenly loses its predictive ability after age 50. The only relevant studies presented are contrary to appellants’ assumption. These studies support the conclusion that airline pilots should be terminated at age 60 because after that age medical examinations lose their predictive ability. See Air Line Pilots Assn., Int’l v. Quesada, 276 F. 2d 892 (CA2 1960).
      The suggestion that age 50 is not the critical point for predictive ability is also supported by the national experience. Appellee has produced a study of the laws of the 50 States that shows that Massachusetts’ age-50 retirement law prescribes the earliest retirement age in the Nation, and that no other State requires its state police to retire before age 55. Brief for Appellee 37 n. 14.
      In short, I refuse to hypothesize that testing after age 50 loses its predictive ability when the appellants have introduced absolutely nothing that supports this position.

       Indeed, the appellants have conceded that “[a]ny individual member of the Uniformed Branch . . . whose age is fifty years or more may be capable of performing the physical activity required of the Uniformed Branch . . . depending upon his individual physical condition.” App. 44. See id., at 52.

       The Court’s conclusion today does not imply that all mandatory retirement laws are constitutionally valid. Here the primary state interest is in maintaining a physically fit police force, not a mentally alert or manually dexterous work force. That the Court concludes it is rational to legislate on the assumption that physical strength and well-being decrease significantly with age does not imply that-it will reach the same conclusion with respect to legislation based on assumptions about mental or manual ability. Accordingly, a mandatory retirement law for all government employees would stand in a posture different from the law before us today.


author: Mr. Chief Justice Burger Mr. Justice Stewart,

text:
    NORTH v. RUSSELL et al.
    No. 74-1409.
    Argued December 9, 1975
    Decided June 28, 1976
    Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. BrennaN, J., concurred in the result. Stewart, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 339. Stevens, J., took no part in the consideration or decision of the case.

      Charles E. Goss argued the cause and filed briefs for appellant.

      Robert L. Chenoweth, Assistant Attorney General of Kentucky, argued the cause for appellees. With him on the briefs was Ed W. Hancock, Attorney General.

      Briefs of amici curiae urging reversal were filed by Mian Ash-man for the American. Judicature Society; by Rene H. Reixach, Jr., for the Petitioners and Classes of Petitioners in Wyse v. Hopkins and in Sanchez v. Tonkin; and by Laughlin McDonald, Ray McClain, Neil Bradley, and Melvin L. Wulf for the American Civil Liberties Union Foundation, Inc.; by Leslie G. Whitmer for the Kentucky Bar Assn.; by Marshall' J. Hartman, Joseph T. Garlovsky, and James F. Flug for the National Legal Aid and Defender Assn.; and by Jimi Mitsunaga for the Salt Lake Legal Defenders Assn.

        Eugene W. Salisbury, Duncan S. MacAfjer, and Lawrence A. Schulz filed a brief for the New York State Association of Magistrates as amicus curiae urging affirmance.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

The question presented in this case is whether an accused, subject to possible imprisonment, is denied due process when tried before a nonlawyer police court judge with a later trial de novo available under a State's two-tier court system; and whether a State denies equal protection by providing law-trained judges for some police courts and lay judges for others, depending upon the State Constitution's classification of cities according to population.

(1)

Appellant Lonnie North was arrested in Lynch, Ky., on July 10, 1974, and charged with driving while intoxicated in violation of Ky. Rev. Stat. Ann. § 189.520 (2) (1971). If a first offense, a penalty of a fine of from $100 to $500 is provided; if a subsequent offense, the same fine, and imprisonment for not more than six months. Ky. Rev. Stat. Ann. § 189.990 (10) (a) (1971).

Appellant’s trial was scheduled for July 18, 1974, at 7 p. m., before the Lynch City Police Court. Appellee C. B. Russell, who is not a lawyer, was the presiding judge. Appellant’s request for a jury was denied although under Kentucky law he was entitled to a jury trial. Ky. Const. § 11; Ky. Rev. Stat. Ann. §§25.014, 26.400 (1971). Appellant pleaded not guilty. Appellant was found guilty and sentenced to 30 days in jail, a fine of $150, and revocation of his driver’s license.

Section 156 of the Kentucky Constitution requires cities to be classified according to population size. There are six classes of cities: fifth-class cities have a population of between 1,000 and 3,000; sixth-class cities have a population of less than 1,000. Lynch is a fifth-class city. Ky. Rev. Stat. Ann. § 81.010 (5) (1971). A police judge in fifth- and sixth-class cities must by statute be a voter and resident of the city for at least one year and be bonded, Ky. Rev. Stat. Ann. § 26.200 (1971); the police judge in such cities need not be a lawyer. Police judges in first-class cities, which have populations of over 100,000, must have the same qualifications as a circuit judge, who must be at least 35 years of age, a citizen of Kentucky, a two-year resident of the district, and a practicing attorney for eight years. Ky. Const. § 130; Ky. Rev. Stat. Ann. § 26.140 (1971). Police court judges have terms of four years. In fourth-, fifth-, or sixth-class cities police judges maybe either appointed or elected. Ky. Const. § 160.

Police courts have jurisdiction, concurrent with circuit courts, of penal and misdemeanor cases punishable by a fine of not more than $500 and/or imprisonment of not more than 12 months. Ky. Rev. Stat. Ann. § 26.010 (1971). Kentucky has a two-tier misdemeanor court system. An appeal of right is provided from the decision of a police judge to the circuit court where all judges are lawyers, and in that court a jury trial de novo may be had. Ky. Rev. Stat. Ann. § 23.032 (1971); Ky. Rule Crim. Proc. 12.06.

Appellant did not appeal to the Kentucky circuit court for a trial de novo to which he was entitled. After being sentenced by appellee judge, appellant challenged the statutory scheme described above by a writ of habeas corpus in the Harlan County Circuit Court, where he was represented by an attorney. Appellant contended that his federal due process and equal protection rights had been abridged because he had been tried and convicted in a court presided over by a judge without legal training and thus without legal competence. The State Circuit Court issued the writ, granted bail, and held an eviden-tiary hearing.

The Circuit Court noted that appellant was not challenging the adequacy of the proceedings before appellee Bussell, and hence rested on the appellant’s pleadings, which the court found were purposefully limited to the issue whether appellant could be tried before a judge who was not legally trained when persons similarly situated but residing in larger cities would be tried by a judge trained in the law. The Circuit Court denied relief on the basis of the Kentucky Court of Appeals holding in Ditty v. Hampton, 490 S. W. 2d 772 (1972), appeal dismissed, 414 U. S. 885 (1973). The Kentucky Court of Appeals in turn affirmed the denial of relief on the basis of Ditty v. Hampton, supra, noting that appellant could apply for bail in the event of an appeal from the Lynch Police Court judgment. 516 S. W. 2d 103 (1974).

When this ease first came here on appeal we vacated the judgment and remanded it “for further consideration in light of the position presently asserted by the Commonwealth.” 419 U. S. 1085 (1974). The Attorney General of Kentucky in his motion to dismiss or affirm had requested that this Court remand the case to the Kentucky Court of Appeals for consideration of violations of state law based on the suggestion that ap-pellee judge had “mistakenly imposed a sentence of imprisonment upon appellant for a first offense of driving while intoxicated, whereas imprisonment is not an authorized punishment for first offenders . . . .” The Kentucky Attorney General conceded that the writ of habeas corpus should have been granted and requested an opportunity to correct the error.

On remand, however, the Kentucky Court of Appeals declined to decide the case on the state grounds presented by the Attorney General, noting that the federal constitutional issue “was and is the only issue before us.” That court noted that appellant sought only to “test the constitutional status of lay judges in criminal cases.” No. 7¿h-723 (Mar. 21, 1975).

On the second appeal to this Court we noted probable jurisdiction. 422 U. S. 1040 (1975).

(2)

Appellant’s first claim is that when confinement is a possible penalty, a law-trained judge is required by the Due Process Clause of the Fourteenth Amendment whether or not a trial de novo before a lawyer-judge is available.

It must be recognized that there is a wide gap between the functions of a judge of a court of general jurisdiction, dealing with complex litigation, and the functions of a local police court judge trying a typical “drunk” driver case or other trafile violations. However, once it appears that confinement is an available penalty, the process commands scrutiny. See Argersinger v. Hamlin, 407 U. S. 25 (1972).

Appellant argues that the right to counsel articulated in Argersinger v. Hamlin, supra, and Gideon v. Wainwright, 372 U. S. 335 (1963), is meaningless without a lawyer-judge to understand the arguments of counsel. Appellant also argues that the increased complexity of substantive and procedural criminal law requires that all judges now be lawyers in order to be able to rule correctly on the intricate issues lurking even in some simple misdemeanor cases. In the context of the Kentucky procedures, however, it is unnecessary to reach the question whether a defendant could be convicted and imprisoned after a proceeding in which the only trial afforded is conducted by a lay judge. In all instances, a defendant in Kentucky facing a criminal sentence is afforded an opportunity to be tried de novo in a court presided over by a lawyer-judge since an appeal automatically vacates the conviction in police court. Ky. Rev. Stat. Ann. §23.032 (1971); Ky. Rule Crim. Proc. 12.06. The trial de novo is available after either a trial or a plea of guilty in the police court; a defendant is entitled to bail while awaiting the trial de novo. 516 S. W. 2d 103 (1974).

It is obvious that many defendants charged with a traffic violation or other misdemeanor may be uncoun-seled when they appear before the police court. They may be unaware of their right to a de novo trial after a judgment is entered since the decision is likely to be prompt. We assume that police court judges recognize their obligation under Argersinger v. Hamlin, supra, to inform defendants of their right to a lawyer if a sentence of confinement is to be imposed. The appellee judge testified that informing defendants of a right to counsel was “the standard procedure.” App. 32. We also assume that police court judges in Kentucky recognize their obligation to inform all convicted defendants, including those who waived counsel or for whom imprisonment was not imposed, of their unconditional right to a trial de novo and of the necessity that an “appeal” be filed within 30 days in order to implement that right. Ky. Rule Crim. Proc. 12.04.

In Colten v. Kentucky, 407 U. S. 104 (1972), we considered Kentucky’s two-tier system there challenged on other grounds. We noted:

“The right to a new trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky. Rule Crim. Proc. 12.06. Prosecution and defense begin anew. . . . The case is to be regarded exactly as if it had been brought there in the first instance.” Id., at 113.

We went on to note that the justifications urged by States for continuing such tribunals are the “increasing burdens on state judiciaries” and the “interest of both the defendant and the State, to provide speedier and less costly adjudications” than those provided in courts “where the full range of constitutional guarantees is available . . . Id., at 114. Moreover, state policy takes into account that it is a convenience to those charged to be tried in or near their own community, rather than travel to a distant court where a law-trained judge is provided, and to have the option, as here, of a trial after regular business hours. We took note of these practical considerations in Colten:

“We are not persuaded, however, that the Kentucky arrangement for dealing with the less serious offenses disadvantages defendants any more or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available. Proceedings in the inferior courts are simple and speedy, and, if the results in Colten’s case are any evidence, the penalty is not characteristically severe. Such proceedings offer a defendant the opportunity to learn about the prosecution's case and, if he chooses, he need not reveal his own. He may also plead guilty without a trial and promptly secure a de novo trial in a court of general criminal jurisdiction.” Id., at 118-119.

Under Ward v. Village of Monroeville, 409 U. S. 57, 61-62 (1972), appellant argues that he is entitled to a lawyer-judge in the first instance. There the judge was also mayor and the village received a substantial portion of its income from fines imposed by him as judge. Similarly in Tumey v. Ohio, 273 U. S. 510 (1927), the challenge was directed not at the training or education of the judge but at his possible bias due to interest in the outcome of the case, because as in Mon-roeville he was both mayor and judge and received a portion of his compensation directly from the fines. Financial interest in the fines was thought to risk a possible bias in finding guilt and fixing the amount of fines, and • the. Court found that potential for bias impermissible.

Under the Kentucky system, as we noted in Colten, a defendant can have an initial trial before a lawyer-judge by pleading guilty in the police court, thus bypassing that court and seeking the de novo trial, “erasing . . . any consequence that would otherwise follow from tendering the [guilty] plea.” 407 U. S., at 119-120.

Our concern in prior cases with judicial functions being performed by nonjudicial officers has also been directed at the need for independent, neutral, and detached judgment, not at legal training. See Coolidge v. New Hampshire, 403 U. S. 443, 449-453 (1971). See also, e. g., Whiteley v. Warden, 401 U. S. 560, 564 (1971); Katz v. United States, 389 U. S. 347, 356 (1967); Wong Sun v. United States, 371 U. S. 471, 481-482 (1963). Yet cases such as Shadwick v. City of Tampa, 407 U. S. 345 (1972), are relevant; lay magistrates and other judicial officers empowered to issue warrants must deal with evaluation of such legal concepts as probable cause and the sufficiency of warrant affidavits. Indeed, in Shadwick the probable-cause evaluation made by the lay magistrate related to a charge of “impaired driving.”

(3)

Appellant’s second claim is that Kentucky’s constitutional provisions classifying cities by population and its statutory provisions permitting lay judges to preside in some cities while requiring law-trained judges in others denies him the equal protection guaranteed by the Fourteenth Amendment. However, all people within a given city and within cities of the same size are treated equally.

The Kentucky Court of Appeals in Ditty v. Hampton, supra, articulated reasons for the differing qualifications of police court judges in cities of different size:

“1. The greater volume of court business in the larger cities requires that judges be attorneys to enable the courts to operate efficiently and expeditiously (not necessarily with more fairness and impartiality).
“2. Lawyers with whom to staff the courts are more available in the larger cities.
“3. The larger cities have greater financial resources with which to provide better qualified personnel and better facilities for the courts.” 490 S. W. 2d, at 776.

That court then noted: “That population and area factors may justify classifications within a court system has long been recognized.” Id., at 776-777. The Court of Appeals relied upon Missouri v. Lewis, 101 U. S. 22 (1880), which held that as long as all people within the classified area are treated equally:

“Each State . . . may establish one system of courts for cities and another for rural districts, one system for one portion of its territory and another system for another portion. Convenience, if not necessity, often requires this to be done, and it would seriously interfere with the power of a State to regulate its internal affairs to deny to it this right.” Id., at 30-31.

See generally Salsburg v. Maryland, 346 U. S. 545 (1954); Fay v. New York, 332 U. S. 261 (1947); Manes v. Goldin, 400 F. Supp. 23 (EDNY 1975) (three-judge court), summarily aff’d, 423 U. S. 1068 (1976).

We conclude that the Kentucky two-tier trial court system with lay judicial officers in the first tier in smaller cities and an appeal of right with a de novo trial before a traditionally law-trained judge in the second does not violate either the due process or equal protection guarantees of the Constitution of the United States; accordingly the judgment before us is

Affirmed.

Me. Justice Brennan concurs in the result.

Mr. Justice Stevens took no part in the consideration or decision of this case.

Mr. Justice Stewart,

with whom Mr. Justice Marshall joins, dissenting.

Lonnie North was haled into a Kentucky criminal court and there tried, convicted, and sentenced to a term of imprisonment by Judge C. B. Russell. Judge Russell is a coal miner without any legal training or education whatever. I believe that a trial before such a judge that results in the imprisonment of the defendant is constitutionally intolerable. It deprives the accused of his right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments, and deprives him as well of due process of law.

I

A

The reasons why a defendant in a criminal trial needs a lawyer to assist in his defense have nowhere been better put than in the oft-quoted words of Mr. Justice Sutherland's opinion for the Court in Powell v. Alabama, 287 U. S. 45:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” Id., at 68-69.

So it was that, beginning with the capital case of Powell v. Alabama, supra, extending through the felony case of Gideon v. Wainwright, 372 U. S. 335, and culminating in the misdemeanor case of Argersinger v. Ham lin, 407 U. S. 25, the Court’s decisions firmly established that a person who has not been accorded the constitutional right to the assistance of counsel cannot be sentenced to even one day of imprisonment.

But the essential presupposition of this basic constitutional right is that the judge conducting the trial will be able to understand what the defendant’s lawyer is talking about. For if the judge himself is ignorant of the law, then he, too, will be incapable of determining whether the charge “is good or bad.” He, too, will be “unfamiliar with the rules of evidence.” And a lawyer for the defendant will be able to do little or nothing to prevent an unjust conviction. In a trial before such a judge, the constitutional right to the assistance of counsel thus becomes a hollow mockery — “a teasing illusion like a munificent bequest in a pauper’s will.” Edwards v. California, 314 U. S. 160, 186 (Jackson, J., concurring).

B

In this case Judge Russell denied a motion for trial by jury, although under Kentucky law North was clearly entitled to a jury trial upon request. Ky. Const. § 11; Ky. Rev. Stat. Ann. §§25.014, 26.400 (1971). And after finding North guilty, Judge Russell proceeded to impose a sentence of imprisonment, although such a sentence was clearly unauthorized by Kentucky law. Ky. Rev. Stat. Ann. §§ 189.520 (2), 189.990 (10) (a) (1971).

But even if it were not possible to demonstrate in a particular case that the lay judge had been incompetent or the trial egregiously unfair, I think that any trial before a lay judge that results in the defendant’s imprisonment violates the Due Process Clause of the Fourteenth Amendment. The Court has never required a showing of specific or individualized prejudice when it was the procedure itself that violated due process of law. “[A]t times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.” Estes v. Texas, 381 U. S. 532, 542-543. See Rideau v. Louisiana, 373 U. S. 723; Hamilton v. Alabama, 368 U. S. 52.

A trial judge is “charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial.” Faretta v. California, 422 U. S. 806, 839 (Burger, C. J., dissenting). See Geders v. United States, 425 U. S. 80; 86-87. Among the critical functions that a trial judge must frequently perform are the acceptance of a guilty plea, Henderson v. Morgan, 426 U. S. 637; the determination of the voluntariness of a confession, Jackson v. Denno, 378 U. S. 368; the advising of the defendant of his trial rights, Boykin v. Alabama, 395 U. S. 238; and the instruction of a jury, Bollenbach v. United States, 326 U. S. 607, 612. A judge ignorant of the law is simply incapable of performing these functions. If he is aware of his- incompetence, such a judge will perhaps instinctively turn to the prosecutor for advice and direction. But such a practice no more than compounds the due process violation. See In re Murchison, 349 U. S. 133, 136.

The Kentucky Court of Appeals characterized the kind of trial that took place here as an “absurdity.” The trial, in my view, was such an absurdity as to constitute a gross denial of due process of law.

II

The Court seems to say that these constitutional deficiencies can all be swept under the rug and forgotten because the convicted defendant may have a trial de novo before a qualified judge. I cannot agree.

In Ward v. Village of Monroeville, 409 U. S. 57, the Court made clear that “the State’s trial court procedure [cannot] be deemed constitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in the first instance.” Id., at 61-62. See also Callan v. Wilson, 127 U. S. 540 (right to trial by jury is right to a jury in first instance).

The Court would distinguish the Ward case as “directed at the need for independent, neutral, and detached judgment, not at legal training.” Ante, at 337. But surely there can be no meaningful constitutional difference between a trial that is fundamentally unfair because of the judge’s possible bias, and one that is fundamentally unfair because of the judge’s ignorance of the law.

And the Court’s suggestion that a defendant haled before a lay judge can protect his constitutional rights by simply pleading guilty and immediately seeking a trial de novo is wholly unpersuasive. First, this argument assumes without any factual support that the defendant will be informed of his right to a trial de novo. Second, the procedure would still necessitate multiple court appearances, at the cost of both delay and an increased financial burden for attorneys’ fees and court costs. Third, such a practice would turn what should be a solemn court proceeding, see Boykin v. Alabama, 395 U. S. 238, into nothing more than a sham. In short, I cannot accept the suggestion that, as a prerequisite to a constitutionally fair trial, a defendant must stand up in open court and inform a judge that he is guilty when in fact he believes that he is not.

At Runnymede in 1215 King John pledged to his barons that he would “not make any Justiciaries, Constables, Sheriffs, or Bailiffs, excepting of such as know the laws of the land Magna Carta 45. Today, more than 750 years later, the Court leaves that promise unkept.

I respectfully dissent.

       The offense now carries the same monetary fine schedule, but a second offense now requires imprisonment for not less than three days and not more than six months; any subsequent offense requires imprisonment for not less than 30 days and not more than 12 months. Ky. Rev. Stat. Ann. § 189.990 (9) (a) (Supp. 1974).

       A second-class city (population 20,000-100,000) police judge must be at least 25, a resident of the city for four years, and an attorney at law. Ky. Rev. Stat. Ann. §26.150 (Supp. 1974). A third-class city (population 8,000-20,000) and a fourth-class city (population 3,000-8,000) police judge must be at least 24 and a city resident. Ky. Rev. Stat. Ann. §26.190 (1971).

       The General Assembly of the Commonwealth of Kentucky at its 1974 session, by Senate Bill 183, enacted an Act proposing an amendment to the Kentucky Constitution relating to the judicial branch of government. On November 4, 1975, the Kentucky voters ratified the judicial amendment to the Kentucky Constitution, effective January 1, 1976. It provides, in part, that by January 1, 1978, all the county, quarterly, justice of the peace, and police courts will be combined into one district court in each of the 120 counties. These counties are to be allocated among 55 districts and each district is to elect at least one district judge who must be an attorney licensed in Kentucky. A district judge in multieounty districts must appoint a trial commissioner for each county in which no district judge resides. The commissioner must be an attorney if one is qualified and available. The commissioner will have the power to perform such duties of the district court as may be prescribed by the Kentucky Supreme Court.
      The case is not mooted by this judicial amendment since the police courts will continue to function as challenged until January 1, 1978, and since the new amendment still permits nonlawyer judges to sit. These judges may have power to impose prison sentences if the Kentucky Supreme Court so provides.

       Article III of the United States Constitution, of course, unlike provisions of some state constitutions, see, e. g., N. Y. Const., Art. 6, § 20 (a); S. D. Const., Art. 5, §§ 10, 25, is silent as to any requirement that judges of the United States’ courts, including Justices of the Supreme Court, be lawyers or “learned in the law.” We note that in excess of 95% of all criminal cases in England are tried before lay judicial officers. See D. Karlen, Judicial Administration: The American Experience 32 (1970); H. Abraham, The Judicial Process 246-247, and n. 4 (2d ed. 1968). We also note that many of the States in the United States which utilize nonlawyer judges provide mandatory or voluntary training programs, see, e. g., Iowa Code Ann. §602.50 (6) (1975); La. Rev. Stat. Ann. §49:251.1 (Supp. 1976); Miss. Code Ann. §§ 7-5-59, 9-11-3 (1972); Mont. Rev. Codes Ann. § 93-401 (Supp. 1975); Nev. Rev. Stat. § 5.026 (1973); N. Y. Uniform Justice Court Act § 105 (Supp. 1975-1976); N. C. Sess. Laws, c. 956, §11 (1975); N. D. Cent. Code §27-18-08 (Interim Supp. 1975); Pa. Stat. Ann., Tit. 42, §1214 (Supp. 1976-1977); Utah Code Ann. § 78-5-27 (Supp. 1975); and training manuals, see, e. g., G. Brownlee, The Montana Justice of the Peace and Police Judge (1970). The brief of amicus curiae New York State Association of Magistrates informs us that, of the States that have nonlawyer judges, Delaware, Florida, Idaho, Iowa, Mississippi, Montana, New Mexico, New York, North Carolina, North Dakota, Pennsylvania, Texas, Utah, Washington, West Virginia, and Wyoming have mandatory training programs, and Alaska, Georgia, Kansas, Louisiana, Missouri, Nevada, New Hamsphire, Oregon, South Carolina, Tennessee, Vermont, and Wisconsin have voluntary training programs.

         We observed in Colten v. Kentucky that in the first-tier tribunals, “[s]ome [States], including Kentucky, do not record proceedings and the judges may not be trained for their positions either by experience or schooling.” 407 U. S., at 114. We took note of the Kentucky Court of Appeals' comment that “ 'the inferior courts are not designed or equipped to conduct error-free trials, or to insure full recognition of constitutional freedoms. They are courts of convenience, to provide speedy and inexpensive means of disposition of charges of minor offenses.’ Colten v. Commonwealth, 467 S. W. 2d, at 379.” Id., at 117.

       In Shadwick we cautioned:
      “[0]ur federal system warns of converting desirable practice into constitutional commandment. It recognizes in plural and diverse state activities one key to national innovation and vitality. States are entitled to some flexibility and leeway . . . .” 407 U. S., at 353-354.

       The judge at North’s state habeas corpus hearing concluded: “I think the fact has been established that [Judge Russell is] not a lawyer, he doesn’t know any law, he hasn’t studied any law.” Judge Russell testified that he had only a high school education. He had never received any training concerning his duties as a lay judge. This is not a case, therefore, involving a lay judge who has received the kind of special training that several States apparently provide. See ante, at 333-334, n. 4.
      A study of California’s lay judges made in 1972 showed that 37% had no education beyond high school while 13% had even less formal education. Gordon v. Justice Court, 12 Cal. 3d 323, 330 n. 7, 525 P. 2d 72, 76 n. 7. A 1966 survey revealed that only 5% of Virginia’s justices of the peace were college graduates, Note, 52 Va. L. Rev. 151, 177, while in 1958 one-half of West Virginia’s justices had not completed high school, Note, 69 W. Va. L. Rev. 314, 323. In 1969, the Assistant Attorney General of Mississippi told the State’s Judiciary Commission that “33% of the justices of the peace are limited in educational background to the extent that they are not capable of learning the necessary elements of law.” Hearings on Justice of the Peace Courts and Judges before the Mississippi Judiciary Commission (testimony of R. Hugo Newcomb, Sr.), quoted in Comment, 44 Miss. L. J. 996, 1000 n. 31 (1973).

       At least two state courts have held that such a trial violates the United States Constitution. Gordon v. Justice Court, supra; Shelmidine v. Jones, No. 224948 (Utah 3d Jud. Dist., June 3, 1975).
      Contemporary studies of American court systems have been unanimous in calling for the elimination of nonlawyer judges. See ABA Commission on Standards of Judicial Administration, Court Organization § 1.21 (1974); National Advisory Commission on Criminal Justice Standards & Goals, Task Force Report: Courts, Standard 8.1 (1973); The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 36 (1967); Advisory Commission on Intergovernmental Relations, State-Local Relations in the Criminal Justice System, Recommendation 21 (1971); Consensus Statement of the National Conference on the Judiciary, 55 J. Am. Jud. Soc. 29, 30 (1971).

       Judge Russell testified that he had not received any training concerning rules of evidence and that he was not familiar with the Kentucky statutes relating to jury trials, with the Kentucky rules of criminal procedure, or with the rights guaranteed to a defendant in a criminal case under the Fourteenth Amendment.
      The deposition of a lay magistrate in a South Carolina case provides another illustration of the inadequate legal background of nonlawyer judges:
      “Q. What books do you have . . . that deal with the duties of Magistrate?”
      Magistrate McLendon: “I got a stack of volume books from the courthouse when I got the job, little red books.
      “Q. What books are those sir, do you know the names of them?”
      Magistrate McLendon: “No, sir.
      “Q. Tell me what your understanding of the Code of Laws is, what is contained in the Code of Laws, as you understand?”
      Magistrate McLendon: “Well I never have done any reading in it.
      “Q. You never have had occasion to refer to it?”
      Magistrate McLendon: “No, sir.” Deposition of Magistrate Robert McLendon, Oct. 15, 1974, p. 110, Frierson v. West, Civ. No. 74-1074 (SC May 15, 1975).
      See generally Note, 61 Va. L. Rev. 1454, 1456 (1975); Note, 10 Harv. Civ. Rights — Civ. Lib. L. Rev. 739, 746-755 (1975); Note, 69 W. Va. L. Rev. 314, 323-326 (1967); Comment, 44 Miss. L. J. 996, 1004-1008 (1973); Note, 53 Ore. L. Rev. 411, 428-430, 437 n. 187 (1974).

       Judge Russell conceded that he relied on the city attorney for legal advice:
      “Q. Prior to your appointment as City Judge . . . had you had any previous legal experience of any kind?”
      Judge Russell: “No, sir.
      “Q. Have you had any legal training of any kind since your appointment?”
      Judge Russell: “Well, the only thing I can say, if I have any doubt, I just consult with the city lawyer ....
      “Q. And when you receive advice from the city attorney, do you follow that advice?”
      Judge Russell: “Yes, sir.”
      See also Deposition of Magistrate Robert McLendon, Oct. 15, 1974, p. 116 in Frierson v. West, Civ. No. 74-1074, (SC May 15, 1975) (stating that in event of request for jury trial he “would come to Mr. George Stuckey [the county attorney] and find out what I had to do”).

       See Note, 53 Ore. L. Rev. 411, 430 (1974); Note, 61 Va. L. Rev. 1454, 1469-1470, n. 74 (1975); Note, 10 Harv. Civ. Rights! — Civ. Lib. L. Rev. 739, 755 (1975).

       The scarcity of lawyers or legally trained persons in rural areas cannot serve to justify trials such as this. Utah, to cite one example, has managed to devise a constitutionally adequate trial system even though large portions of the State are sparsely populated and 13 of its 29 counties have two or fewer lawyers. See Utah House Bill No. 1, 1975 First Special Session, amending Utah Code Ann. § 78-5-4. See generally Note, 10 Harv. Civ. Rights— Civ. Lib. L. Rev. 739, 763-767 (1975).

       The Court’s reliance on Colten v. Kentucky, 407 U. S. 104, is misplaced. The question in Colten was not whether a trial of the kind challenged here is constitutionally valid, but the quite different question whether a greater sentence can be imposed on a defendant following a trial de novo without violating North Carolina v. Pearce, 395 U. S. 711.

       The record indicates that North was taken to jail immediately after sentencing and obtained his freedom only when the state habeas corpus court on the following day signed a writ ordering his release. It is hardly likely that North would have spent the night in jail if he had been told that he could avoid jail simply by asking for a trial de novo.

        The Court also states its assumption that Kentucky police court judges will advise defendants of their right to counsel and that counsel will advise their clients of their right to a trial de novo. See ante, at 335. This assumption is also devoid of support in the present record. Although Judge Russell stated that it was “the standard procedure”' to advise defendants of their right to counsel, he was unwilling to state that he advised North of this right, and North unreservedly testified that he was not so advised.