E.E.O.C. v. Com. of Mass.

• Citation: 858 F.2d 52
• Decision Date: 28 July 1988
• Docket Number: No. 88-1419,88-1419
• Parties: 48 Fair Empl.Prac.Cas. 75, 47 Empl. Prac. Dec. P 38,387, 57 USLW 2254 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellant, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 52

858 F.2d 52

48 Fair Empl.Prac.Cas. 75, 47 Empl. Prac.

Dec. P 38,387,

57 USLW 2254

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellant, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants, Appellees.

No. 88-1419.

United States Court of Appeals First Circuit.

Heard July 28, 1988.

Decided Oct. 7, 1988.

Beatrice Valdez with whom Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, and Lorraine C. Davis, Asst. Gen. Counsel, Washington, D.C., were on brief for plaintiff, appellant.

H. Reed Witherby, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., William L. Pardee and Rosanna Cavallaro, Asst. Attys. Gen., Boston, Mass., were on brief, for defendants, appellees.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

This appeal concerns a very circumscribed question, although one of undeniable importance. It requires us to decide whether Congress intended to significantly limit the power of the people of the Commonwealth of Massachusetts to determine its qualifications of judges. The controversy arises out of certain amendments to the Age Discrimination in Employment Act of 1967 (ADEA or Act). These amendments brought that Act into apparent conflict with a provision of the Massachusetts Constitution mandating retirement at age 70 for all state judges. We find no sign, however, of a sufficiently clear statement by Congress that it intended to overrule the clear intent of the people of a state in an area intimately and fundamentally related to that state's self-governance. In consequence, we hold that the ADEA was not intended to apply to appointed state judges, and affirm the district court's judgment.

In 1972 the electorate of the Commonwealth of Massachusetts voted to amend the judicial tenure provision of the Massachusetts Constitution. Part II, Chapter 3, Art. 1 was amended to make the age of 70 the mandatory retirement age for all state judges. At that time the ADEA prohibited discrimination on the basis of age against employees less than 65 years of age, excluding state and municipal employees. In 1974 Congress added states and any other political subdivisions to the definition of employer under the Act. In 1978 the maximum age limit was changed from 65 to 70; and, finally, effective January 1, 1987, Congress made the ADEA applicable to all employees by eliminating the age limit altogether. Thus, a series of amendments to the ADEA brought that Act into facial conflict with the state constitutional provision mandating retirement at age 70. ¹ If we find that a conflict in fact exists, of course, the Supremacy Clause of the United States Constitution requires that a federal statute take precedence over even a state constitutional provision. See, Art. VI, cl. 2, United States Constitution.

The ADEA definition of a covered employee is not, however, all encompassing. Congress defined "employee" very broadly but set forth several exceptions to that definition:

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. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision.

29 U.S.C. Sec. 630(f).

The question we must resolve today is whether appointed state judges (as they all are in Massachusetts) remain within the broad category of "employee" or whether they are withdrawn from that group by one of the enumerated exceptions. Indeed, in light of the significant intrusion into properly state-dominated affairs that such a finding would entail, we will look to see if Congress clearly and unequivocally manifested an intent to regulate the requirements a state can impose on those who hold office in the state's judiciary. See United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971) ("In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision"). Cf. De Bartolo v. Florida Gulf Coast Building and Construction Trades Council, --- U.S. ----, ----, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988) ("where an otherwise acceptable construction of a statute would present serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.").

Without question, the tenure of state judges is a question of exceeding importance to each state, and a question traditionally left to be answered by each state. Any federal encroachment on a state's freedom of choice in this area, therefore, strikes very close to the heart of state sovereignty. ² Congress is not likely to take such step lightly, nor are we inclined to imply such congressional intent where we find Congress did not consciously address the question.

Since Congress and the reluctance of Congressmen to interfere with state rights, are the principal checks on federal interference in state affairs, it seems to us important that we not presume a severe limitation on powers traditionally reserved to the states in the absence of a clear congressional mandate to that effect. One commentator explains why this should be: "[To] give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which [the Court] relie[s] to protect states' interests." L. Tribe, American Constitutional Law, Sec. 6-26, at 480 (2d ed., 1988).

With these considerations in mind, we return to the statute itself. Unlike most states, Massachusetts has chosen an appointed, rather than elected, judiciary. Unlike most states, therefore, Massachusetts' judges do not fall under the first exception in the statute ("any person elected to public office"). Neither do its judges meet the second exception: "any person chosen by such [elected] officer to be on such officer's personal staff." And the fourth one is inapposite as well: "an immediate adviser with respect to the exercise of the constitutional or legal powers of the office."

If appointed judges fit under any exception it is the third one: "an appointee on the policymaking level." Certainly the judges under consideration are appointees. Just as surely they can be said to be "on the policymaking level." While judges have at times been thought to act as somewhat mechanized law-and-fact processors, scientifically applying settled principles of law to established fact patterns, that image hardly meshes with the reality of judging. The trial judge in this case, in fact, provides us with an apt description of the kind of decisions that members of the bench are called upon to make:

It is nevertheless clear that "policymaking" is indisputably a part of the function of judging to the extent that judging involves lawmaking to fill the interstices of authority found in constitutions, statutes, and precedents (a function more predominant in appellate judging than in the performance of trial judges, who are of course, the group whose interests plaintiff EEOC seeks to protect in this litigation). Moreover, the substantive interest identified by the phrase "on the policymaking level" is closely aligned with an interest referred to by phrases such as "exercise of discretion" and "exercise of judgment," which are indisputably descriptive of most of the performance of those persons within the judicial branch who serve as judges (including trial judges).

E.E.O.C. v. Commonwealth of Massachusetts, 680 F.Supp. 455, 462 (D.Mass.1988).

This judicial type of policymaking is unlike that done in the executive and legislative branches of government. It nevertheless requires the same kind of decision-making, and the same kind of forward thinking that is required of "appointees on the policymaking level" in those other two branches of government. And it certainly concerns state government to a similar degree.

The Commission argues, however, that this is not Congress' intended meaning of "appointee on [a] policymaking level." It relies principally on the absence of any mention of appointed state judges in the relevant legislative history. As we pointed out earlier, however, if Congress did not specifically consider applying ADEA to judges, and the exception by its terms and its goals, appears to apply to judges, we will so construe it. The absence of any mention of judges in legislative debate, therefore, does not help the appellant's case.

The exceptions for state government officials occur in both Title VII and the ADEA. There was very little debate in Congress concerning this provision of the ADEA. However, this issue, including the scope of its coverage, generated controversy during the debate on Title VII. Therefore, most of the legislative history on which appellants rely concerns the amendments to Title VII. Most of the debate was initiated by Senator Ervin, who was concerned that the original definition of employee in Title VII--which is identical, including the same exceptions to the ADEA definition--would reach also to those "persons who exercise the legislative, executive, and judicial powers of the States and political subdivisions of the States." 118 Cong. Rec. 1837 (1972). The debate is relevant, therefore, to the scope of the "employee" definition in ADEA. If anything, however, it supports the appellees' position. Throughout, the legislators were attempting to address Senator Ervin's concern that ...