Gregory v. Ashcroft

Citation111 S.Ct. 2395,115 L.Ed.2d 410,501 U.S. 452
Decision Date20 June 1991
Docket NumberNo. 90-50,90-50
PartiesEllis GREGORY, Jr. and Anthony P. Nugent, Jr., Judges, Petitioners v. John D. ASHCROFT, Governor of Missouri
CourtUnited States Supreme Court

Article V, § 26 of the Missouri Constitution provides a mandatory retirement age of 70 for most state judges. Petitioners, judges subject to § 26, were appointed by the Governor and subsequently were retained in office by means of retention elections in which they ran unopposed, subject only to a "yes or no" vote. Along with other state judges, they filed suit against respondent Governor, alleging that § 26 violated the federal Age Discrimination in Employment Act of 1967 (ADEA) and the Equal Protection Clause of the Fourteenth Amendment. The District Court granted the Governor's motion to dismiss, ruling that there was no ADEA violation because Missouri's appointed judges are not covered "employees" within the Act's terms, and that there was no equal protection violation because there is a rational basis for the distinction between judges and other state officials to whom no mandatory retirement age applies. The Court of Appeals affirmed.


1. Missouri's mandatory retirement requirement for judges does not violate the ADEA. Pp. 456-470.

(a) The authority of a State's people to determine the qualifications of their most important government officials lies "at the heart of representative government," and is reserved under the Tenth Amendment and guaranteed by the Guarantee Clause of Article IV, § 4. See, e.g., Sugarman v. Dougall, 413 U.S. 634, 648, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853. Because congressional interference with the Missouri people's decision to establish a qualification for their judges would upset the usual constitutional balance of federal and state powers, Congress must make its intention to do so "unmistakably clear in the language of the statute." See, e.g., Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45. Moreover, where Congress acts pursuant to its Commerce Clause power—as it did in extending the ADEA to the States, see EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18—the authority of a State's people to determine their government officials' qualifications may be inviolate. Application of the Will plain statement rule to determine whether Congress intended the ADEA to apply to state judges may help the Court to avoid a potential constitutional problem. Pp. 457-464.

(b) Appointed state judges are not covered by the ADEA. When it extended the Act's substantive provisions to include the States as employers, Congress redefined "employee" to exclude all elected and most high-ranking state officials, including "appointee[s] on the policymaking level." It is at least ambiguous whether a state judge is such an appointee. Regardless of whether the judge might be considered to make policy in the same sense as executive officials and legislators, the judge certainly is in a position requiring the exercise of discretion concerning issues of public importance, and therefore might be said to be "on the policymaking level." Thus, it cannot be concluded that the ADEA "makes unmistakably clear," Will, supra, 491 U.S. at 65, 109 S.Ct., at 2308, that appointed state judges are covered. Pp. 464-467.

(c) Even if Congress acted pursuant to its enforcement powers under § 5 of the Fourteenth Amendment, in addition to its Commerce Clause powers, when it extended the ADEA to state employment, the ambiguity in the Act's "employee" definition precludes this Court from attributing to Congress an intent to cover appointed state judges. Although, in EEOC v. Wyoming, supra, 460 U.S., at 243, and n. 18, 103 S.Ct., at 1064, and n. 18, the Court noted that the federalism principles constraining Congress' exercise of its Commerce Clause powers are attenuated when it acts pursuant to its § 5 powers, the Court's political-function cases demonstrate that the Fourteenth Amendment does not override all such principles, see, e.g., Sugarman, supra, 413 U.S., at 648, 93 S.Ct., at 2850. Of particular relevance here is Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 16, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694, in which the Court established that it will not attribute to Congress an unstated intent to intrude on traditional state authority in the exercise of its § 5 powers. That rule looks much like the plain statement rule applied supra, and pertains here in the face of the statutory ambiguity. Pp. 467-470.

2. Missouri's mandatory retirement provision does not violate the Equal Protection Clause. Pp. 470-473.

(a) Petitioners correctly assert their challenge at the rational basis level, since age is not a suspect classification under the Equal Protection Clause, and since they do not claim that they have a fundamental interest in serving as judges. See, e.g., Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942-943, 59 L.Ed.2d 171. In such circumstances, this Court will not overturn a state constitutional provision unless varying treatment of different groups is so unrelated to the achievement of any combination of legitimate purposes that it can only be concluded that the people's actions in approving it were irrational. Ibid. Pp. 470-471.

(b) The Missouri people rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal from office sufficiently inadequate, that they will require all judges to step aside at that age. Because it is an unfortunate fact of life that physical and mental capacity sometimes diminish with age, the people may wish to replace some older judges in order to satisfy the legitimate, indeed compelling, public interest in maintaining a judiciary fully capable of performing judges' demanding tasks. Although most judges probably do not suffer significant deterioration at age 70, the people could reasonably conceive the basis for the classification to be true. See Bradley, supra, 440 U.S., at 111, 99 S.Ct., at 949-950. Voluntary retirement will not always be sufficient to serve acceptably the goal of a fully functioning judiciary, nor may impeachment, with its public humiliation and elaborate procedural machinery. The election process may also be inadequate, since most voters never observe judges in action nor read their opinions; since state judges serve longer terms than other officials, making them—deliberately less dependent on the people's will; and since infrequent retention elections may not serve as an adequate check on judges whose performance is deficient. That other state officials are not subject to mandatory retirement is rationally explained by the facts that their performance is subject to greater public scrutiny, that they are subject to more standard elections, that deterioration in their performance is more readily discernible, and that they are more easily removed than judges. Pp. 471-473.

898 F.2d 598 (CA8 1990), affirmed.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and SCALIA, KENNEDY, and SOUTER, JJ., joined, and in Parts I and III of which WHITE and STEVENS, JJ., joined. WHITE, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which STEVENS, J., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL, J., joined.

Jim J. Shoemake, St. Louis, Mo., for petitioners.

James B. Deutsch, Jefferson City, Mo., for respondent.

Justice O'CONNOR delivered the opinion of the Court.

Article V, § 26 of the Missouri Constitution provides that "[a]ll judges other than municipal judges shall retire at the age of seventy years." We consider whether this mandatory retirement provision violates the federal Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. §§ 621-634, and whether it comports with the federal constitutional prescription of equal protection of the laws.


Petitioners are Missouri state judges. Judge Ellis Gregory, Jr., is an associate circuit judge for the Twenty-First Judicial Circuit. Judge Anthony P. Nugent, Jr., is a judge of the Missouri Court of Appeals, Western District. Both are subject to the § 26 mandatory retirement provision. Petitioners were appointed to office by the Governor of Missouri, pursuant to the Missouri Non-Partisan Court Plan, Mo. Const., Art. V, §§ 25(a)-25(g). Each has, since his appointment, been retained in office by means of a retention election in which the judge ran unopposed, subject only to a "yes or no" vote. See Mo. Const., Art. V, § 25(c)(1).

Petitioners and two other state judges filed suit against John D. Ashcroft, the Governor of Missouri, in United States District Court for the Eastern District of Missouri, challenging the validity of the mandatory retirement provision. The judges alleged that the provision violated both the ADEA and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Governor filed a motion to dismiss.

The District Court granted the motion, holding that Missouri's appointed judges are not protected by the ADEA because they are "appointees . . . 'on a policymaking level' " and therefore are excluded from the Act's definition of "employee." App. to Pet. for Cert. 22. The court held also that the mandatory retirement provision does not violate the Equal Protection Clause because there is a rational basis for the distinction between judges and other state officials to whom no mandatory retirement age applies. Id., at 23.

The United States Court of Appeals for the Eighth Circuit affirmed the dismissal. 898 F.2d 598 (1990). That court also held that appointed judges are " 'appointee[s] on the policymaking level,' " and are therefore not covered under the ADEA. Id., at 604. The Court of Appeals held as well that Missouri had a rational basis for distinguishing judges who had reached the age of 70 from those...

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