680 F.Supp. 455 (D.Mass. 1988), Civ. A. 87-3015, E.E.O.C. v. Commonwealth of Massachusetts

Docket Nº:Civ. A. 87-3015
Citation:680 F.Supp. 455
Party Name:E.E.O.C. v. Commonwealth of Massachusetts
Case Date:February 23, 1988
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 455

680 F.Supp. 455 (D.Mass. 1988)



COMMONWEALTH OF MASSACHUSETTS, the Trial Court of the Commonwealth of Massachusetts, and the Massachusetts Retirement Board, Defendants.

Civ. A. No. 87-3015-K.

United States District Court, D. Massachusetts.

Feb. 23, 1988

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Cheryl Kramer, James Lee, EEOC, New York City, for plaintiff.

H. Reed Witherby, Asst. Atty. Gen., Boston, Mass., for defendants.


KEETON, District Judge.

Between November 3 and November 30, 1987, several Massachusetts state court judges filed charges of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a Letter of Violation and, after conciliation failed, filed a complaint against the Commonwealth and others in this court on December 18, 1987. The EEOC charges that the provision of the Massachusetts Constitution requiring that justices of the Trial Court of Massachusetts retire upon attaining the age of 70 is a violation of the Age Discrimination in Employment Act of 1967 ("ADEA" or "the Act").

At a conference on January 28, 1988, a joint motion for a phased trial pursuant to Fed.R.Civ.P. 42(b) was granted. Phase I of the trial was limited to the issue of preemption. The res judicata effects of Apkin v. Treasurer and Receiver General, 401 Mass. 427, 517 N.E.2d 141 (1987) (holding that the ADEA did not preempt the state law of mandatory retirement as to the plaintiff in that case), issues concerning damages and relief, and any other issues that might in any circumstances be essential to final disposition were deferred to Phase II.

Phase I proceeded immediately on January 28. At trial, plaintiff and defendants rested after submission of trial briefs (Docket Nos. 11, 12), a Statement of Agreed Facts (Docket No. 15), and a Legislative Research Council Report Relative to Judicial Selection in the United States (Docket No. 14). This Opinion resolves against plaintiff the issue presented in Phase I. In view of this ruling, all issues reserved for Phase II are moot, and final judgment for defendants will be entered forthwith.


As provided in the state constitution, judges in the Commonwealth of Massachusetts have always been chosen by appointment of the governor, with advice and consent of the Governor's Council. Constitution of the Commonwealth, Part II, c. 2, § 1, art. 9. In 1972, the judicial tenure provision of the Massachusetts Constitution, Part II, Chapter 3, art. 1, was amended by Amend. Art. XCVIII to provide that "upon attaining seventy years of age said

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judges shall be retired." Since the effective date of this 1972 amendment, judges in the Commonwealth of Massachusetts have been mandatorily retired at age 70.

Subject to several exceptions explored more fully infra, the ADEA, 29 U.S.C. § 621, et seq., prohibits an employer from discriminating in hiring or firing against an employee who has reached the age of 40. The mandatory judicial retirement provision of the Massachusetts Constitution was unaffected by the ADEA when the Constitution was amended in 1972 because, at that time, the ADEA did not apply to State and municipal employers or to employees 65 years or older. In 1974, however, Congress amended the definition of "employer" to include a State and any political subdivision. See 29 U.S.C.§ 630(b). In 1978, the age limit of 65 was raised to 70, and in 1986 (effective January 1, 1987), Congress eliminated the age 70 limit by amending the ADEA to cover all employees having reached the age of 40. See 29 U.S.C. § 631(a).

It is undisputed that if the definition of "employee" extends to the judges on whose behalf EEOC sues, the enforcement of the mandatory retirement provision of the Massachusetts Constitution is a prima facie violation of the Act. See Equal Employment Opportunity Commission v. Trabucco, 791 F.2d 1 (1st Cir.1986).

Under the Supremacy Clause of the United States Constitution, a conflict between federal law and state law must be resolved in favor of the federal law. Thus, if and "to the extent that the [ADEA] conflict[s] with existing mandatory retirement statutes, the Supremacy Clause dictates that federal law prevail." Orzel v. City of Wauwatosa Fire Dept., 697 F.2d 743, 752 (7th Cir.1983); see also Louisiana Public Service Comm'n v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 1901, 90 L.Ed.2d 369 (1986) (stating that the supremacy of federal law is a "basic underpinning of our federal system").


The central issue in this case is the meaning of an "except" clause in the ADEA definition of "employee."

The term "employee" means an individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.

29 U.S.C. § 630(f) (emphasis added).

Close examination of this statutory definition reveals the following features of its method of expressing its meaning.

(1) No single test of inclusion or exclusion from the definition is stated; rather, a general statement defining a test for inclusion is followed by an "except" clause that takes out of the definition (of "employee") some of the persons who are within the group identified by the general inclusionary test.

(2) Within the "except" clause, no single test for exception is stated; that is, the "except" clause does not state a single identifying characteristic or a single set of characteristics that a person must have to be excepted from the definition of employee. (This point is explained more fully in Part III, infra.)

(3) None of the several different characteristics referred to in the "except" clause (each of which is, at least in some circumstances, relevant to determining whether a person is excepted) is alone a necessary precondition to being excepted from the definition of "employee." Instead, the "except" clause states that a person having any one of several different characteristics is excepted from the definition of "employee."

Though not the only way a drafter may choose to disclose the meaning of an instrument--whether it is a statute, a contract, a will, a declaration of trust, or any other kind of instrument--this method of drafting is quite common.

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One who is charged with responsibility for determining and applying the meaning of a definition drafted by this method must, to be candid and realistic in the search for manifested meaning, take account of the following additional features of definitions drafted in this form:

(4) Each of the several different characteristics identified in an "except" clause as sufficient alone to take a person out of a definition (here, the definition of "employee") is likely to be based upon a concern or combination of concerns about overbreadth of the inclusionary test (which the "except" clause qualifies), and that concern or set of concerns is likely to differ from the concern or set of concerns about overbreadth on which each of the other listed characteristics is based.

(5) Nevertheless, the whole universe of instances to which the definition is to be applied is finally divided into only two groups--those persons within and those persons not within the definition (here, the definition of "employee").

(6) This classification of all persons into one of two contrasting groups is done, implicitly if not explicitly, on the premise that all those in the "excepted" group are similar in some way that is relevant to the determination of the legal rights and responsibilities that the statute (or other document) governs.

(7) Because of inherent limitations of human imagination and foresight, any listing of characteristics of different categories of persons who are nevertheless alike for some purpose of decisionmaking is almost certain to be incomplete.

Illustrations of this seventh point are legion. An example that will serve to clarify the point is a traffic rule declaring a speed limit or some other "rule of the road." Customarily--perhaps even invariably--the rule is subject to exceptions for emergencies. The ordinance or statute may so state, as some have, leaving it to courts to develop the catalog of circumstances that constitute "emergencies" in this context. Or the ordinance or statute may, as some have, use the method of an "except" clause to list such specific instances as operation of ambulances and police and fire vehicles responding to calls of distress. Experience has demonstrated that when this latter method of drafting the "except" clause is used, courts are confronted with cases involving factual circumstances that present claims to recognition as emergencies that are at least as compelling as those explicitly listed.

A statute requiring lights on a buggy proceeding upon a highway later than one hour after sundown was before the court in Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (1920). In his opinion for the court, Judge Cardozo wrote that an "unexcused omission of the statutory signals" would constitute negligence per se. Id., 126 N.E. at 815. Suppose that, by way of excuse, one charged with violating this statute offered evidence that out of the gloom someone threw rocks that destroyed the lights and left the traveler stranded to wait until dawn or proceed in literal violation of the prescribed standard of conduct. The clear implication of Cardozo's phrase, "unexcused omission of the statutory signals," is that some excuses not specified in the statute would be recognized. Should a court uphold a misdemeanor conviction under this statute against a person who proceeded cautiously, but without the required lights, to a haven safe from the risk of harm by the unknown...

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