Gregory v. Ashcroft

• Citation: 898 F.2d 598
• Decision Date: 05 March 1990
• Docket Number: No. 89-2360,89-2360
• Parties: 52 Fair Empl.Prac.Cas. 544, 52 Empl. Prac. Dec. P 39,697, 58 USLW 2529 Honorable Ellis GREGORY, Jr.; Honorable Anthony P. Nugent, Jr.; Honorable Douglas W. Greene and Honorable Flake L. McHaney, Appellants, v. Honorable John D. ASHCROFT, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 598

898 F.2d 598

52 Fair Empl.Prac.Cas. 544,

52 Empl. Prac. Dec. P 39,697, 58 USLW 2529

Honorable Ellis GREGORY, Jr.; Honorable Anthony P. Nugent Jr.; Honorable Douglas W. Greene and Honorable Flake L. McHaney, Appellants, v. Honorable John D. ASHCROFT, Appellee.

No. 89-2360.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 17, 1989.

Decided March 5, 1990.

Jim J. Shoemake, St. Louis, Mo., Samuel Marcosson, amicus curiae, Washington, D.C., for appellants.

Michael L. Boicourt, Jefferson City, Mo., for appellee.

Before BOWMAN and BEAM, Circuit Judges, and ROSS, Senior Circuit Judge.

BOWMAN, Circuit Judge.

Four Missouri state court judges challenge the provision of the Missouri Constitution that mandates their retirement at age 70. Mo. Const. art. V, Sec. 26(1) (1945 as amended 1976) ("mandatory retirement provision"). Judges Ellis Gregory, Jr., Anthony P. Nugent, Jr., and Douglas W. Greene, argue that the mandatory retirement provision violates the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634 (1982 & Supp.1987). These judges along with Judge Flake L. McHaney further argue that the mandatory retirement provision violates the equal protection clause of the Fourteenth Amendment.

Judges Gregory, Nugent, and Greene were initially appointed and have been retained as judges pursuant to the Missouri Non-Partisan Court Plan ("Missouri Plan"). Mo. Const. art. V, Sec. 25. Under the Missouri Plan, the Governor (selecting from candidates recommended by merit screening commissions) appoints judges to the state supreme court, to the state intermediate appellate court, and to the state circuit courts within Jackson County (which encompasses Kansas City) and the city of St. Louis. At the end of his appointed term, each judge must place his name on the ballot in the next general election if he wishes to be retained for another term. If a majority of the voters vote in favor of retaining the judge in office, he serves another full term on the bench. At the end of that term, the judge again may place his name on the ballot and be retained for yet another full term; except for the mandatory retirement provision, there is no limit on the number of terms a judge may achieve through this ballot-retention method. The judges selected according to the Missouri Plan argue that they are "employees" entitled to the protection of the ADEA because they are neither "elected to public office" nor "appointee[s] on the policymaking level." See 29 U.S.C. Sec. 630(f). ¹

The District Court ² granted Governor John D. Ashcroft's motion to dismiss after determining that Judges Gregory, Nugent, and Greene were excluded from the ADEA definition of "employee" because they are "appointee[s] on the policymaking level," 29 U.S.C. Sec. 630(f), and that the mandatory retirement provision does not violate the Fourteenth Amendment because there is a rational basis for this provision. The judges appeal. We affirm.

I.

The statutory claim of Judges Gregory, Nugent, and Greene arises out of an asserted conflict between the ADEA, 29 U.S.C. Sec. 621-634, and the provision of the Missouri Constitution that requires judges to retire upon reaching the age of 70. Subject to several exceptions discussed below, the ADEA prohibits an employer from discriminating on the basis of age in making virtually any employment decision regarding an employee who is 40 or more years of age. 29 U.S.C. Secs. 623, 631. In 1976, when the mandatory retirement provision was added to the Missouri constitution, it was unaffected by the ADEA, which at that time applied only to employees between the ages of 40 and 65. In 1978, Congress raised the age limit of 65 to 70, and in 1986 (effective January 1, 1987), it eliminated the upper age limit and amended the ADEA to cover all employees having reached the age of 40. See 29 U.S.C. Sec. 631(a).

It is undisputed that if the definition of "employee" contained in the ADEA extends to Judges Gregory, Nugent, and Greene, the application to them of the mandatory retirement provision would be a violation of the Act. Under the supremacy clause of the United States Constitution, a conflict between a constitutionally valid federal law and state law must be resolved in favor of the federal law. See U.S. Const. art. VI, cl. 2. Thus, "to the extent that the [ADEA] conflict[s] with existing state mandatory retirement statutes, the Supremacy Clause dictates that federal law prevail." Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d 743, 752 (7th Cir.), cert. denied, 464 U.S. 992, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983). For supremacy clause purposes, it makes no difference that here the mandatory retirement provision is found in the state constitution rather than in a state statute. Because, however, the tenure of state judges is a matter of considerable importance to a state, and one that traditionally has been left to each state to regulate, we will examine the ADEA to determine whether Congress explicitly and unequivocally manifested its intent to preempt state law in this area. 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."). We do not think Congress would have passed legislation that so significantly intrudes on a state's power to regulate its judiciary without giving serious consideration to the consequences of the legislation, its implications for our federal system, and the question of its constitutional basis. We therefore will not interpret the ADEA as conflicting with the Missouri Constitution unless we find that Congress clearly has expressed its intention to bring state judges into the ambit of the federal statute. Accord EEOC v. Massachusetts, 858 F.2d 52, 54 (1st Cir.1988).

We now turn to the language of the statute. The central issue is whether the "except" clause in the ADEA definition of "employee" applies to appointed state court judges and thereby excludes them from the protection of the Act.

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 advisor with respect to the exercise of the constitutional or legal powers of the office.

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

As a preliminary matter, we note that the District Court found Judges Gregory, Nugent, and Greene, initially appointed by the Governor and retained in office by a majority of the voters as required by the Missouri Plan, to be outside the ADEA's exception for persons "elected to public office". Although we are inclined to disagree with this aspect of the District Court's decision, the Governor did not cross-appeal this issue, it was not briefed by either side, and it is not properly before us. We therefore express no opinion on this point, and shall assume for the balance of this opinion that state judges selected according to the Missouri Plan are appointed and not "elected" within the meaning of the ADEA. ³

It follows that our task is to determine whether appointed state judges are "appointee[s] on the policymaking level." A handful of federal and state courts have addressed this issue. See EEOC v. Massachusetts, 858 F.2d 52 (1st Cir.), aff'g 680 F.Supp. 455 (D.Mass.1988); EEOC v. Illinois, 721 F.Supp. 156 (N.D.Ill.1989); EEOC v. Vermont, 717 F.Supp. 261 (D.Vt.1989); Schlitz v. Virginia, 681 F.Supp. 330 (E.D.Va.), rev'd on other grounds, 854 F.2d 43 (4th Cir.1988); In re Stout, 521 Pa. 571, 559 A.2d 489 (1989); Apkin v. Treasurer and Receiver Gen., 401 Mass. 427, 517 N.E.2d 141 (1988). Of these, only in Vermont, 717 F.Supp. at 264, and Schlitz, 681 F.Supp. at 334, has it been held that state judges are not "appointee[s] on the policymaking level." The other four cases all reach the opposite conclusion, and thus hold that appointed state judges are not within the purview of the ADEA.

Appellants urge us to adopt the reasoning and holding of the district courts in Vermont and Schlitz. They argue that a literal reading of the "policymaking level" exception supports their position because the principal function of a judge is not to make policy, but rather to "decide cases between litigants involving questions of law in which there are no interstices or lacunae to fill." Vermont, 717 F.Supp. at 265; Appellant's Brief at 10. We recognize that this view of the role of the judge is not without its adherents. Although it may accurately describe the judge's role in the easy cases, we cannot agree that it does so across the broad spectrum of cases with which judges must deal. The reality of judging is that it is not always--and perhaps not even usually--merely a matter of mechanically applying settled, unambiguous principles of law to specific fact patterns as they arise. We therefore are attracted to the view taken by the First Circuit:

"[P]olicymaking" 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.... 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....

EEOC v. Massachusetts, 858 F.2d 52, 55 (1st Cir.1988) (quoting EEOC v. Massachusetts, 680 F.Supp. at 462 (D.Mass.1988)). In keeping with our common...