Murgia v. COMMONWEALTH OF MASSACHUSETTS BD. OF RETIRE.

Citation345 F. Supp. 1140
Decision Date21 July 1972
Docket NumberCiv. A. No. 72-2083.
PartiesRobert D. MURGIA, Plaintiff, v. COMMONWEALTH OF MASSACHUSETTS BOARD OF RETIREMENT, Defendant.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

William F. Looney, Jr., Moulton, Looney, Mazzone, Falk & Markham, Civil

Rights—Employment, Boston, Mass., for plaintiff.

Robert Quinn, Atty. Gen. for Mass., Walter H. Mayo, III, Asst. Atty. Gen., Boston, Mass., for defendant.

MEMORANDUM AND ORDER

CAMPBELL, District Judge.

I

Plaintiff is the executive officer and lieutenant colonel of the Uniformed Branch of the Massachusetts State Police, with over 24 years service in that branch. On July 23, 1972, when he reaches the age of 50, he will be retired from the state police, pursuant to M.G.L. ch. 32, sec. 26(3)(a), which requires that the state board of retirement retire members of the Uniformed Branch when they reach 50 or complete 20 years service, whichever occurs later.

Plaintiff brings this action, asserting jurisdiction under 28 U.S.C. § 1343(3), to enjoin the execution of ch. 32, § 26(3)(a). He alleges that the statute discriminates against him in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution.

Plaintiff claims that he is denied equal protection of a right to employment in at least three ways:

"(a) Men have been employed by the State Police, taken a leave of absence of many years, and returned to the force and continued their employment up to age 65 because they have not completed their 20 years service.
(b) Detectives in the State Police who perform similar functions as the uniformed branch are permitted to continue in their employment under General Laws, Chapter 26(3) to the age of 65.
(c) Women in the State Police by virtue of an exception in General Laws, Chapter 22, Section 9A are permitted to continue their employment beyond the age of 50." Complaint ¶ 7.

The immediate questions before this Court are whether or not to convene a three-judge court pursuant to 28 U.S.C. Secs. 2281 and 2284, and issue a preliminary injunction restraining plaintiff's forced retirement pending final determination of the case. A hearing addressed to these questions was held on July 18, 1972. There, in addition to the arguments of counsel, the Court heard plaintiff present case-history examples and other evidence to illustrate the alleged discriminations described above. The Court also allowed a brief amicus statement to be made, opposing plaintiff's contentions, by counsel for the State Police Association of Massachusetts.

II

A three-judge court is not required to be convened if the constitutional question raised is insubstantial. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933). There the Court said:

"The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. . . . The question may be plainly unsubstantial, either because it is `obviously without merit' or because `its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.'" 290 U.S. at 32, 54 S.Ct. at 4.

More recently, the Supreme Court has reiterated that the question of substantiality is for the single judge to decide:

"When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute." Idelwild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962). See also Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965).

In deciding whether or not the constitutional question presented here is substantial, this Court feels that it should be guided by the following language of the Second Circuit Court of Appeals:

"The easiest solution for the district judge, whenever the words `United States Constitution' or `Fourteenth Amendment' appear in a complaint, would be to relieve himself of two-thirds of the responsibility for the decision by requesting the convening of a three judge court . . . But a district judge should not feel that he is merely a rubber stamp or that he exercises his judgment at his peril . . . Although this case may not be `open and shut' (so few cases are), the decisions of the Supreme Court and other courts which are as analogous as possible to this case should be examined to ascertain whether they `foreclose the subject.' . . . Of course, no two cases involving equal protection are alike as to facts and, were mere factual variation the test, all cases should be channeled to the Supreme Court on the chance that some distinguishing feature might be found. However, the Supreme Court reminds us that `the Three-judge requirement is a technical one to be narrowly construed. Phillips v. United States, 312 U.S. 246, 251 61 S.Ct. 480, 483, 85 L.Ed. 800.'" Johnson v. New York State Education Department, 449 F.2d 871, 875-876 (2nd Cir. 1971). Compare Jackson v. Choate, 404 F.2d 910, 913 (5th Cir. 1968).
III

Upon examination of analogous Supreme Court and lower court cases, I conclude that plaintiff's federal constitutional claim is without merit.

This is not a case where a plaintiff is alleging discrimination based upon a suspect classification such as religion or race, or deprivation of some fundamental right such as the right to vote. Statutory classifications of such a nature are subject to special scrutiny by the courts. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).

The plaintiff has pointed to no case bringing the right sought to be protected here, the right to continued employment beyond a specified age or period of service, within the area where only a compelling interest allows the state to maintain the challenged classification. Indeed, one case plaintiff relies on did not even consider the constitutional question, Allen v. Borough of West Mifflin, 419 Pa. 394, 214 A.2d 502 (1965), and the other held against the officers complaining of forced retirement, Boyle v. City of Philadelphia, 338 Pa. 129, 12 A.2d 43 (1940).

Absent any allegations touching off strict scrutiny of the challenged classification, the task before the court is to determine whether the "classification bears some rational relationship to a legitimate state purpose." Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), and cases cited therein.

The Supreme Court has applied this test where classifications depriving persons of employment opportunities are challenged. Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947), Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948).

According to counsel for the Commonwealth, the purpose of the challenged statute is to insure that the Uniformed Branch of the state police be a "young, vigorous force." Early retirement even of high-ranking officers gives younger men a chance for promotion and ensures that commanders possess the physical vigor to accompany their men in the field. These are surely legitimate purposes. Mandatory retirement at the age of 50 is at least a rational, if not the only, means of achieving them.

True, the statute provides that a state policeman may not be retired until he has reached 20 years' service if that should occur after he has reached 50. The Commonwealth explains that this provision merely tempers the age-50 requirement in the interest of having a policeman serve long enough to merit a pension.

Under usual circumstances, a man will be forced to retire at age 50 in any event, since he may enlist in the state police for the first time only between the ages of 21 and 29. M.G.L. ch. 22, § 9A, effective Dec. 1, 1939. But it has happened, for various reasons, that some members have exceeded or will exceed age 50 when they retire. Thus, before the effective date of § 9A, some men over 29 enlisted. Others, by special statutory dispensation, were allowed to enlist after they had reached 30 if they had served in the armed forces during World War II. Ch. 22, § 9A, as amended by the Act of 1946, ch. 260.

A notarized letter by the Commissioner of Public Safety, made an appendix to this opinion, shows that most uniformed policemen over 50 at retirement are in the above two categories. The case histories produced by the plaintiff's own search do not contradict this conclusion.

Finally, in some instances, members have left and then returned to the service, and hence are over 50 before putting in 20 years total service. But as the Commissioner's notarized letter makes clear, relatively few men are in this category: Only two men presently in the service, and two men who have retired.

Only to the limited extent illustrated by the examples given above is the principal statutory purpose thwarted. The Commissioner states that since 1921 only 35 out of 2,061 individuals enlisted in the Uniformed Branch served over the age of 50.

As for the differences between the treatment of the plaintiff and the treatment of detectives and women, it is surely rational to differentiate between those whose jobs require primarily patrolling, and crime prevention and control, and those whose duties require less athletic and physically demanding work. Detectives, whose primary task is investigation, and women, whose primary task is dealing with women and children, could rationally be determined by the legislature to fall within this latter category.

That...

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1 cases
  • Massachusetts Board of Retirement v. Murgia
    • United States
    • United States Supreme Court
    • 25 Junio 1976
    ......            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 ... 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. 10. Indeed, were it not for the existing annual individual examinations through age 50, appellee would concede the rationality of ......

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