Apkin v. Treasurer and Receiver General

• Decision Date: 06 January 1988
• Citation: 401 Mass. 427,517 N.E.2d 141
• Parties: , 45 Fair Empl.Prac.Cas. (BNA) 1435, 48 Empl. Prac. Dec. P 38,530, 56 USLW 2414 Benjamin APKIN v. TREASURER AND RECEIVER GENERAL 1 et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 141

517 N.E.2d 141

401 Mass. 427, 45 Fair Empl.Prac.Cas. (BNA) 1435,

48 Empl. Prac. Dec. P 38,530, 56 USLW 2414

Benjamin APKIN v. TREASURER AND RECEIVER GENERAL ¹ et al.²

Supreme Judicial Court of Massachusetts Suffolk.

Argued Dec. 10, 1987.

Decided Jan. 6, 1988.

John P. Slattery, Boston, for plaintiff.

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

Charles Shanor, Washington, D.C. and Robert L. Williams, James L. Lee and Cheryl Kramer, New York City, for U.S.E.E.O.C., amicus curiae, submitted a brief.

Before WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

We deal with a provision of the Constitution of the Commonwealth which requires all Massachusetts judges to retire at the age of seventy and the contention of the plaintiff judge that a 1986 amendment to the Federal Age Discrimination in Employment Act (FADEA) overrides that requirement and bars the defendants from retiring him at the age of seventy.

The Honorable Benjamin Apkin has served as a judge in the District Court of the Commonwealth since his nomination and appointment in 1957 by the Governor, with the advice and consent of the Council, pursuant to Part II, c. 2, § 1, art. 9, of the Constitution of the Commonwealth. He is now presiding justice of the Northern Berkshire Division of the District Court Department. The defendants are responsible for the administration and enforcement of the retirement laws of the Commonwealth as they relate to Judge Apkin.

Judge Apkin was born on January 14, 1918, and will attain the age of seventy on January 13, 1988. ³ After his seventieth birthday Judge Apkin may seek to be recalled to serve as a judge under G.L. c. 32, § 65G (1986 ed.), but he has no right to be recalled. Upon retirement, Judge Apkin will be entitled to a pension in the amount of seventy-five per cent of his annual salary. G.L. c. 32, § 65A (1986 ed.).

Judge Apkin commenced this action on October 22, 1987, in the Supreme Judicial Court for the county of Suffolk. A single justice of this court reserved decision and reported the case to the full court on the pleadings and a statement of agreed facts. The judge seeks a declaration of his rights and an injunction against enforcement of the constitutional provision mandating his retirement at age seventy.

On November 7, 1972, the people approved, by a vote of 1,608,282 (76%) to 502,743 (24%), a constitutional amendment which requires that all judges shall be retired at age seventy. ⁴ See Return of Votes, 1973 Acts and Resolves of Massachusetts 1779-1785. A majority of those voting in each city and town in the Commonwealth was in favor of the amendment. Id. There is not the least doubt that, for the purposes of State law, the 1972 amendment compels the retirement of a Massachusetts judge who attains the age of seventy.

The FADEA, 29 U.S.C. §§ 621 et seq., makes it unlawful, speaking generally, for an employer to discriminate against any employee over the age of thirty-nine on the basis of age. The FADEA did not apply to State employees until 1974, when Congress amended the definition of "employer," 29 U.S.C. § 630(b), to include a State and any political subdivision or State agency. Pub.L. 93-259, § 28(a)(1)-(4), 88 Stat. 78 (1974). At that time the FADEA applied only to persons at least forty years of age and under the age of sixty-five. 29 U.S.C. § 631(a). Pub.L. 90-202, § 12, 81 Stat. 607 (1967). In 1978 the age limit was generally increased to seventy and was eliminated entirely for Federal employees. Pub.L. 95-256, § 3(a), 92 Stat. 189 (1978). The conflict between the FADEA and the State Constitution's mandate that judges retire at age seventy thus did not arise until 1986, when Congress amended the FADEA (effective January 1, 1987) to apply to all employees who had attained the age of forty. 29 U.S.C. § 631(a). Pub.L. 99-592, §§ 2(c), 7, 100 Stat. 3342, 3345 (1986). The effect of that amendment was to make the FADEA applicable for the first time, with certain exceptions, to individuals outside Federal employment who had attained the age of seventy. It is clear that, if the 1986 amendment to the FADEA does apply lawfully to Massachusetts judges, the forced retirement of all Massachusetts judges at age seventy is a prima facie violation of the FADEA. EEOC v. Trabucco, 791 F.2d 1, 3 (1st Cir.1986). ⁵

The definition of an "employee" in the FADEA excludes "any person elected to public office in any State or political subdivision of any State by the qualified voters thereof." 29 U.S.C. § 630(f). The vast majority of State judges in this country are elected. See Legislative Research Council Report Relative to Judicial Selection in the United States, 1986 House Doc. No. 5492, at 27-30; Berkson, Beller & Grimaldi, Judicial Selection in the United States: A Compendium of Provisions 6-7, 18-46 (American Judicature Society 1980). The FADEA provides them no protection against mandatory retirement. An elected judge, therefore, may be involuntarily retired at age seventy (or at any other age) if the law of that judge's State so provides. It is Judge Apkin's view that Congress intended a different result for that relatively small percentage of State judges who are appointed and live in States mandating retirement at a given age.

We fully acknowledge the controlling influence of the supremacy clause (art. VI, cl. 2) of the Constitution of the United States and recognize our obligation to hold a provision of the Constitution of the Commonwealth invalid if it conflicts with a lawful act of Congress. Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 243-244, 69 N.E.2d 115 (1946). See Public Utils. Comm'n of Cal. v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958). The defendants suggest the question whether in our Federal system there still remains at least some substantive limitation on the power of Congress to dictate the terms under which a State may structure and operate its government. They argue, however, only that Congress's failure expressly to exclude appointed judges, like elected judges, from the FADEA was an oversight, and that this congressional indirection and inadvertence is not a proper basis on which to annul a democratically expressed choice that State judges be retired at age seventy.

We conclude, first, that a statute should not be read in derogation of a State's sovereign interests unless it clearly appears that Congress so intended, and, second, that Congress did not clearly express an intention to apply the FADEA to appointed State judges. Therefore, the FADEA does not preempt our State constitutional provision for mandatory retirement at age seventy for State judges.

It has been recognized under the commerce clause that there are few limitations on Congress's power to legislate on matters of State sovereignty. Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 556, 105 S.Ct. 1005, 1020, 83 L.Ed.2d 1016 (1985). The FADEA properly applies under the commerce clause to State employees in general. See Johnson v. Mayor & City Council of Baltimore, 472 U.S. 353, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985); EEOC v. Wyoming, 460 U.S. 226, 243, 103 S.Ct. 1054, 1064, 75 L.Ed.2d 18 (1983) (game wardens). On the other hand, the Garcia opinion expressly reserved the question of "what affirmative limits the constitutional structure might impose on federal action affecting the States under the Commerce Clause." Garcia v. San Antonio Metropolitan Transit Auth., supra 469 U.S. at 556, 105 S.Ct. at 1020. There is no opinion of the Supreme Court of the United States upholding, under the commerce clause (or otherwise), a congressional act which sought to preempt a State constitutional provision concerning its frame of government. ⁶

Although the Supreme Court has left the question open (see EEOC v. Wyoming, supra 460 U.S. at 243, 103 S.Ct. at 1064), there is authority that the FADEA was adopted pursuant to Congress's power under § 5 of the Fourteenth Amendment. See Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 699 (1st Cir.1983); EEOC v. County of Calumet, 686 F.2d 1249, 1251-1253 (7th Cir.1982). If that is so, whatever residual Tenth Amendment rights the States may have for commerce clause purposes may be irrelevant, if there are no substantial limits on the power of Congress to use § 5 to regulate the States (see Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 [1976] ), and assuming that the FADEA's vagarious and arbitrary application to State judges can be sustained as a proper exercise of Congress's § 5 power. The purpose of the FADEA is to prohibit "arbitrary age discrimination." 29 U.S.C. § 621(b). Assuming the plaintiff's view of the requirements of the FADEA is correct, the FADEA would itself arbitrarily discriminate between elected judges (who may be required to retire at age seventy or at any other age) and appointed judges (who cannot be required to retire at any time on account of age).

We need not speculate further on whether the Supreme Court of the United States would uphold a clearly expressed congressional intent to abrogate a State law mandating the retirement of judges at age seventy. We see no preemption here because Congress did not intend to override a State law which requires judges to retire at a particular age.

The courts historically have been reluctant to infer preemption. See Maryland v. Louisiana, 451 U.S. 725, 746-747, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (1981). Preemption should be found where State law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). See Exxon Corp. v. Governor of Md., 437 U.S. 117, 132, 98 S.Ct. 2207, 2217, 57 L.Ed.2d 91 (1978), and cases cited.

Congress's deliberate choice should be expressed in a clear statement of intent when a Federal statute impinges on areas that implicate State sovereignty as...