McCarthy v. Sheriff of Suffolk County

• Citation: 322 N.E.2d 758,366 Mass. 779
• Parties: John E. McCARTHY et al. v. SHERIFF OF SUFFOLK COUNTY et al. (and two companion cases) 1
• Decision Date: 06 February 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 758

322 N.E.2d 758

366 Mass. 779

John E. McCARTHY et al.

v.

SHERIFF OF SUFFOLK COUNTY et al. (and two companion cases)¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 7, 1974.

Decided Feb. 6, 1975.

Wilson D. Rogers, Jr., South Weymouth, (Charles J. Dunn, Boston, with him) for plaintiffs.

Mack K. Greenberg, Asst. Corp. Counsel, Boston (Herbert P. Gleason, Corp. Counsel, Boston, with him) for the Sheriff of Suffolk County and others.

Michael Eby, Deputy Asst. Atty. Gen. (Terence P. O'Malley, Asst. Atty. Gen., with him) for the Atty. Gen.

James R. DeGiacomo, Boston, (Michael T Putziger, Edward M. Ginsberg and S. George Bromberg, Boston, with him) for the Sheriff of Norfolk County and others.

Before TAURO, C.J., and QUIRICO, BRAUCHER, KAPLAN, and WILKINS, JJ.

TAURO, Chief Justice.

The plaintiffs, court officers appointed pursuant to G.L. c. 221, §§ 69, 70, and 72, to attend sessions of the Superior and Supreme Judicial courts, filed a bill of complaint for declaratory and injunctive relief, alleging that St. 1972, c. 740, § 10, amending c. 221, § 72, which reduces the mandatory retirement age for court officers from seventy to sixty-five, is unconstitutional if applied to them. Similar bills were filed on behalf of named plaintiffs in Norfolk and Middlesex counties ² and were consolidated for trial in Suffolk County, where, after consideration, the trial judge reported all the cases to the Appeals Court. We allowed the plaintiffs' application for direct appellate review, and these cases are now before us pursuant to S.J.C. Rule 3:24, § 4, 359 Mass. 834, and fn. thereon, and 835 (1972).

The relevant facts, as set forth in the statement of agreed facts, are briefly as follows: The plaintiffs are all court officers appointed prior to August 16, 1972, the effective date of the amendment. ³ All except the plaintiffs Sweeney and Howell ⁴ are members of the State employees' retirement system and all are classified in Group 1. G.L. c. 32, § 3(2)(g). Prior to the 1972 amendment, G.L. c. 221, § 72, provided that court officers were to be appointed to hold office during good behavior and were removable for cause. The employment of those court officers who are members of the retirement system had been modified to the extent that they were required to retire at age seventy, in accordance with the requirements for members of Group 1. G.L. c. 32, § 1, 'Maximum Age.'

All the named plaintiffs have attained the age of sixty-five. All will be retired immediately if the amendment lowering the retirement age is found to be applicable to them. The plaintiffs bring these suits to enjoin the defendants from interfering with their employment as court officers and for a declaration that St. 1972, c. 740, § 10, does not apply to them. We hold that the amendment is applicable to all the plaintiffs, and, as applied, does not contravene either the United States or the Massachusetts Constitutions.

The plaintiffs treat these cases as revolving around the question of retroactivity; first, whether the Legislature intended the statute to operate retroactively, and second, whether such retroactive operation would be constitutional. They assume that application of the amendment to presently employed court officers makes it retroactive, and then argue that such retroactivity would contravene the United States and Massachusetts Constitutions. There is a major fallacy in this analysis. The fact that a nonprocedural statute applies to the plaintiffs does not, in and of itself, make that statute retroactive. Neither does the fact that it draws on antecedent facts for its operation. Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332 (1922). Lewis v. Fidelity & Deposit Co. 292 U.S. 559, 571, 54 S.Ct. 848, 78 L.Ed. 1425 (1934). In order to determine whether a statute is retroactive, it is necessary to look at the rights and obligations of the parties as they existed immediately before and after the effective date thereof. It is only where vested substantive rights of the parties have been adversely affected that we can say a statute operates retroactively, and it is only then that we need analyze the nature of the governmental interest involved in order to determine whether the statute, as applied, violates due process. Cf. Bernhardt v. Atlantic Fin. Corp., 311 Mass. 183, 190--191, 40 N.E.2d 713 (1942).

We turn then to an examination of the rights of the plaintiffs immediately before and after the amending legislation. The plaintiffs contend that they possessed contractual rights in their pension ⁵ benefits, pursuant to G.L. c. 32, § 25(5). ⁶ As to this point, there is no dispute. Opinion of the Justices, --- Mass. ---, ---, ^a 303 N.E.2d 320 (1973). The controversy exists in defining the nature and extent of the rights created by § 25(5) in order to determine whether those rights have been impaired by St. 1972, c. 740, § 10.

It is well settled that, where an office is created by the Legislature and not by the Constitution, '(I)t may be regulated, limited, enlarged or terminated by law, as public exigency or policy may require.' Taft v. Adams, 3 Gray 126, 130 (1855). Accord, Butler v. Pennsylvania, 51 U.S. 402, 10 How. 402, 416, 13 L.Ed. 472 (1850); Barnes v. Mayor of Chicopee, 213 Mass. 1, 4, 99 N.E. 464 (1912); Attorney Gen. v. Tufts, 239 Mass. 458, 480, 131 N.E. 573 (1921); Williams v. New Bedford, 303 Mass. 213, 214--215, 21 N.E.2d 265 (1939). See Nichols v. Commissioner of Pub. Welfare, 311 Mass. 125, 130, 40 N.E.2d 275 (1942); Commissioner of Admn. v. Kelley, 351 Mass. 686, 691, 223 N.E.2d 670 (1967). Cf. McNeil v. Mayor & City Council of Peabody, 297 Mass. 499, 9 N.E.2d 566 (1937). See also Kingston v. McLaughlin, 359 F.Supp. 25 (D.Mass.1972), affd. 411 U.S. 923, 92 S.Ct. 1900, 36 L.Ed.2d 388 (1973). The Legislature is free to alter the methods for appointment and removal of State officers, as well as to change their duties or tenure. Collins v. Selectmen of Brookline, 325 Mass. 562, 565, 91 N.E.2d 747 (1950). The fact that an officer is appointed during 'good behavior,' removable for cause, does not alter this result. Donaghy v. Macy, 167 Mass. 178, 45 N.E. 87 (1896). Thus, the plaintiffs here had no contractual rights to continued government employment.

The plaintiffs argue, however, that G.L. c. 32, § 25(5), changes this long-standing rule as to them, because it prevents the Legislature from taking any action which would impair the pension rights and benefits of members of the State retirement system. They contend that c. 740, § 10, which lowers the mandatory retirement age for court officers from seventy to sixty-five, adversely affects the pension benefits payable on retirement, ⁷ and thus violates their contract with the Commonwealth, in contravention of both the United States and Massachusetts Constitutions. ⁸ We disagree.

In our recent OPINION OF THE JUSTICES, --- MASS. ---, 303 N.E.2D 320 (1973)^B, we examined the legislative history of § 25(5) in order to determine the scope of the contractual rights created by that section. We held that, at a minimum, § 25(5) creates a contractual relationship wherein members of the system are entitled to have the level of rights and benefits in force when they became members preserved substantially in their favor without modification downward. Id. at ---, ^c 303 N.E.2d 320. In characterizing the nature of the contractual rights created, we stated that they are 'best understood as meaning that the retirement scheme has generated material expectations on the part of employees and those expectations should in substance be respected.' Id. at ---, ^d 303 N.E.2d at 328. We went on to say that members of the plan should be protected in the core of their reasonable expectations. Ibid. The key to the contractual relationship established by § 25(5), then, is those material expectations which can reasonably be said to affect an employee's decision to accept, and stay employed in, a position with the Commonwealth. See, generally, Cohn, Public Employee Retirement Plans--The Nature of the Employees' Rights, 1968 U. of Ill. L. Forum 32. See also 1955 House Doc. No. 2500, pp. 105--108 (minority report). We cannot say that the plaintiffs, in accepting employment with the Commonwealth and in joining the retirement plan, could have had a reasonable expectation that they would be guaranteed employment as court officers until age seventy, considering the extensive power of the Legislature to change, or in fact to do away with, their positions.

We reject the plaintiffs' argument that, in enacting § 25(5), the Legislature intended to provide them with a guaranteed job until age seventy. There is nothing in the legislative history of that section to support this contention. See 1955 House Doc. No. 2500, pp. 40--41, 105--108 (minority report). We may presume that the Legislature was aware of its power to fix and change the tenure of public officers. Cf. Selectmen of Topsfield v. State Racing Commn., 324 Mass. 309, 313, 86 N.E.2d 65 (1949); Condon v. Haitsma, 325 Mass. 371, 373, 90 N.E.2d 549 (1950). There is no indication that, in enacting § 25(5), it intended impliedly to do away with that power. Pineo v. White, 320 Mass. 487, 491, 70 N.E.2d 294 (1946). Accordingly, we hold that § 25(5) was intended to create pension security, not job security, and that the plaintiffs have no vested contractual rights to continuation in office. ⁹

Our conclusion that the plaintiffs have no vested right to remain employed as court officers until age seventy disposes of their due process contentions. The due process clause protects only those interests which are encompassed in the Fourteenth Amendment's protection of liberty and property. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569--570, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). We have decided that the plaintiffs' interest in continued employment cannot be characterized as a contractual right. It is a mere 'expectancy.' Such...