Judge’s Lawsuit Alleges Age Bias

Marian P. Opala, a bright and irascible man who lives in Warr Acres, Okla., near Oklahoma City, was recently passed over for a top management position. He thinks he knows why -- he’s 83 years old. As a result, he has filed a lawsuit alleging age discrimination.

At that point, his legal action takes an unusual turn that distinguishes it from legions of others filed each year. For 26 years, Opala has served as a justice on the Oklahoma Supreme Court, and the suit was filed against the other eight justices, who declined to name Opala the court’s chief justice.

Opala, who filed the suit last week in U.S. District Court in Oklahoma City, acknowledged Wednesday that his move presented the court with an awkward scenario. Legal experts, noting that judges in many states are required to retire after a certain age, question whether he has a legitimate claim.

But Opala said he was compelled by the “majesty of the law,” and because he believed the back rooms of courthouses were among the last lawless places in the nation.

“The perception of judges,” he said, “is that they need not obey the norms of federal, constitutional law when making their management decisions.”

Joseph M. Watt, 57, the chief justice of the state Supreme Court, said he could not comment on the lawsuit “because it is pending litigation.” Other justices either declined to comment or could not be reached.

Seven of the eight accused justices have asked Oklahoma Atty. Gen. W.A. Drew Edmondson for legal assistance. The attorney general typically defends state officials or employees when they are sued in the course of doing their jobs, said spokesman Charlie Price. He declined to comment further.

Opala was born in Lodz, Poland, in 1921. Growing up, as he put it, “between the two great wars, between Stalin and Hitler,” he became a “dedicated political centrist,” a position that drew him to the balance of the law.

“I developed an early dislike of the extreme left and the extreme right,” he said. “I consider both to be evil political theories.”

After World War II, by then living in England, he emigrated to the United States, becoming a citizen in 1953. His visa was sponsored by an Oklahoma family. He attended law school and worked as a prosecutor. In 1978 he was appointed to the Supreme Court, where he is known more for his intellect than his collegiality.

Justices go before the voters every six years, not in elections in which they face challengers, but in “retention ballots” in which voters are asked to reaffirm their continued service on the bench. No justice has ever been denied retention, meaning they can remain in office as long as they want.

By tradition, the court has long rotated the chief justice position every two years among justices who have served for at least six years. Opala, who served a stint as chief in the 1990s, was in line to succeed Watt in November. But the other justices voted to change their internal rules, allowing chief justices to serve consecutive terms and junior justices to be eligible for the position two years earlier.

The position is largely ceremonial, although it offers prestige and a $3,000 bonus on top of the justices’ annual $107,000 salary.

Opala’s lawsuit says he is of “good health and has sound mental acuity,” and argues that there can be no explanation for the rule change except his age.

Aaron Larson, a Michigan litigator involved in legal education programs, said it was unlikely that the lawsuit would succeed. What might be seen as age discrimination by some is typically legal, Larson said, unless it can be proven “entirely irrational.”

Unlike Oklahoma, most states require judges to retire after a certain age.

“It’s a perfectly reasonable precaution,” he said. “They don’t want justices getting into ill health or senility as they get into their 70s and 80s. Some justices above this age will be perfectly qualified to serve. But that is certainly not universally the case.”