Badgley v. Walton
| Decision Date | 20 August 2010 |
| Docket Number | No. 08-385.,08-385. |
| Citation | 2010 VT 68,10 A.3d 469 |
| Court | Vermont Supreme Court |
| Parties | George BADGLEY and Ruth Whitney v. A. James WALTON, Jr. (Retired), Kerry L. Sleeper (Retired), Commissioners of Public Safety and Department of Public Safety. |
2010 VT 68
George BADGLEY and Ruth Whitney
v.
A. James WALTON, Jr. (Retired), Kerry L. Sleeper (Retired), Commissioners of Public Safety and Department of Public Safety.
No. 08-385.
Supreme Court of Vermont.
July 2, 2010.
Motion for Reargument Denied Aug. 20, 2010.
David G. Reid and James M. Rodgers, Brattleboro, for Plaintiffs-Appellants.
William H. Sorrell, Attorney General, and David R. Groff, Assistant Attorney General, Montpelier, for Defendant-Appellee Department of Public Safety.
Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.
DOOLEY, J.
¶ 1. Plaintiffs George Badgley and Ruth Whitney appeal the Windham Superior Court's dismissal of their claim that the mandatory retirement of public safety officers violates the Common Benefits Clause
¶ 2. Plaintiffs are former state troopers who were forced to retire, under 3 V.S.A. § 459(a)(2), when they reached the age of fifty-five.1 They brought an action for injunctive relief and damages against the Vermont Department of Public Safety and the Commissioner of Public Safety. Plaintiffs argue that the mandatory retirement of public safety officers violates the Common Benefits Clause of the Vermont Constitution. Vt. Const. ch. I, art. 7. Plaintiffs also argue that the statutory exception to the Vermont Fair Employment Practices Act for law enforcement officers, 21 V.S.A. § 495f, is unconstitutional under the same provision of the Vermont Constitution. Section 495f provides a specific exception to the general prohibition that employers may not discriminate on the basis of age, stating: "Mandatory retirement on account of age, necessitated under a police or firefighter retirement system, is specifically authorized."
¶ 3. With respect to plaintiffs' claims for damages, the trial court granted defendants' motion for judgment on the pleadings, finding that these claims were barred by sovereign immunity. The court then held a bench trial and concluded that the mandatory retirement age did not violate the Common Benefits Clause and entered judgment for defendants on plaintiffs' remaining claims. This appeal followed.2
¶ 4. We review a trial court's legal conclusions de novo. Charbonneau v. Gorczyk, 2003 VT 105, ¶ 2, 176 Vt. 140, 838 A.2d 117. We accept a trial court's findings of fact unless the findings are clearly erroneous. Quenneville v. Buttolph, 2003 VT 82, ¶ 11, 175 Vt. 444, 833 A.2d 1263. Plaintiffs have not challenged the trial court's findings of fact.
¶ 5. The trial court made extensive findings with respect to the two plaintiffs who were retired under the mandatory retirement law. We need not repeat these findings except to say that both were in good physical shape with good cognitive skills on the date of their retirement. Both had successful, rewarding and productive careers in the state police. Both have done law enforcement work, but not as state police officers, since their retirement.
¶ 6. As we discuss below, the primary justification for the mandatory retirement policy is maintaining public safety. The trial court, accordingly, made findings in this area. The Department of Public Safety administers annual physical fitness tests to its public safety officers. The tests include sit-ups, push-ups, a "sit-and-reach" stretch test, a timed mile-and-a-half run, and a bench-press test. There is also a body-fat determination. Officers are required to meet established standards in each test for their respective age bracket and gender. The standards are set at the achievement level for the median person in
¶ 7. Two expert witnesses testified at the bench trial, one for each side. The plaintiffs' expert was Dr. Frank Landy, a professor at Pennsylvania State University. Dr. Landy prepared a major report for Congress on whether mandatory retirement policies should be used for law enforcement officers, concluding that they should be replaced by a physical and cognitive testing regime. He testified that age was not a good indicator of an individual's ability to do the job, at least until one reaches seventy years of age. He concluded that a system that possibly eliminated twenty-five percent of qualified persons from state service was grossly overinclusive.
¶ 8. The findings indicate that the court was skeptical about some of Landy's conclusions. For example, it found that the ability to develop a valid and acceptable testing regime "is more difficult than Landy opines." In later findings, the court noted that the advantages of a mandatory retirement system include administrative simplicity, due to the bright-line nature of such a system. It added that a testing regime would be both costly and susceptible to challenges from individual officers and perhaps the officers' union. Finally, it noted that a testing regime would raise issues about gender differences.
¶ 9. Defendants' expert witness was Dr. Deborah Gebhardt, who has extensive experience designing tests for job evaluation, particularly for public safety departments. Dr. Gebhardt reviewed Vermont trooper performance testing data in relation to a national database. She determined that performance declined with age and that the difference between those who are over fifty-five and those who are between fifty and fifty-five is significant. She found that there was a strong correlation between physical testing results and job performance evaluations. She supported the mandatory-retirement rule set at age fifty-five because of the evidence of decline in physical and cognitive abilities that comes with age. Dr. Gebhardt further stated that she did not believe that tests exist that could adequately and safely replace the age rule. She testified that she understands that the mandatory retirement rule is overinclusive, but believes that the presence of even twenty-five percent of the troopers who could not meet established physical standards is a major safety concern that justifies mandatory retirement. The trial court specifically agreed with this conclusion.
¶ 10. Defendants also offered witnesses, including two former Commissioners of Public Safety, who testified to the administrative and workforce development advantages of a mandatory retirement law. For instance, the court summarized former Commissioner Kerry Sleeper's testimony as follows:
He believes that the mandatory retirement system keeps the force viable and promotes younger troopers remaining with the force as the possibility of moving up the ranks is not blocked by long-timers remaining in the upper positions. He found that the arrangement allowed for better planning of promotions and changes since it could easily be ascertained when an officer would leave and open up a position. Since Vermont trooper pay lags behind many states, Kerry found the age 55 retirement helped in recruiting in that they could anticipate promotions as older troopers left. Obviously, the retirement after twenty years on full benefit was also a
major factor as was, he felt, the overall reputation of the Vermont State Police.Other Department witnesses testified similarly.
¶ 11. As discussed in more detail below, the trial court found that the mandatory retirement law does not violate Chapter I, Article 7 of the Vermont Constitution, summarizing that "the overall goal of generally enhanced public safety by a fit force is found to reasonably and necessarily require the mandatory age retirement provision." The court added that the fact that some police forces have employed testing and evaluations as an alternative to mandatory retirement "does not mean such systems are better in achieving the stated goal or make the use of a mandatory age provision unconstitutional."
¶ 12. Before we perform the state constitutional analysis required in this case, it is useful to raise two related matters that give context to that analysis. First, the United States Supreme Court has found a similar mandatory retirement scheme to be constitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam). Murgia involved a challenge to a Massachusetts law under which state police officers were required to retire at age fifty. The Court held that the retirement law did not trigger strict scrutiny under the Equal Protection Clause because "a right of governmental employment" is not fundamental and the class of police officers over age fifty is not suspect. Id. at 313, 96 S.Ct. 2562. Thus, it subjected the retirement law to rational basis review, finding:
[T]he Massachusetts statute clearly meets the requirements of the Equal Protection Clause, for the State's classification rationally furthers the purpose identified by the State: Through mandatory retirement at age 50, the legislature seeks to protect the public by assuring physical preparedness of its uniformed police. Since physical ability generally declines with age, mandatory retirement at 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age. This clearly is rationally related to the State's objective. There is no indication that [the law] has the effect of excluding from service so few officers who are in fact unqualified as to render age 50 a criterion wholly unrelated to the objective of the statute.Id. at 314-16, 96 S.Ct. 2562 (footnotes omitted). The Court acknowledged that fitness might be determined "more precisely through individualized testing," but held that the state had no responsibility to choose that method. Id. at 316, 96 S.Ct. 2562.3
¶ 13. Murgia was a per curiam opinion joined by all justices except Justice Marshall, whose...
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