Nelson v. Miwa

• Decision Date: 24 February 1976
• Docket Number: No. 5560,5560
• Citation: 546 P.2d 1005,56 Haw. 601
• Parties: , 12 Fair Empl.Prac.Cas. (BNA) 1017, 81 A.L.R.3d 799, 11 Empl. Prac. Dec. P 10,862 Frank NELSON, Plaintiff-Appellee, v. Paul MIWA et al., Defendants-Appellants.
• Court: Hawaii Supreme Court

Page 1005

546 P.2d 1005

56 Haw. 601, 12 Fair Empl.Prac.Cas. (BNA)

1017, 81 A.L.R.3d 799,

11 Empl. Prac. Dec. P 10,862

Frank NELSON, Plaintiff-Appellee, v. Paul MIWA et al., Defendants-Appellants.

No. 5560.

Supreme Court of Hawai'i.

Feb. 24, 1976.

Syllabus by the Court

1. The equal protection guaranty prohibits class legislation discriminating against some and favoring others. The guaranty does not take away from the states the right and power to classify the subjects of legislation provided such classification of persons and things is reasonable for the purpose of legislation.

2. The state may not arbitrarily foreclose the right to pursue public employment to a class of individuals without a rational basis therefor.

3. A party assailing a classification as violative of the state and federal constitutions generally has the burden of showing with convincing clarify that the classification does not rest upon some ground of difference having a fair and substantial relation to the object of legislation.

4. The inclusion by our legislature of age among other classifications that are inherently invidious in the context of employment is not without significance in considering allegations of denial of equal protection.

5. A state university's employment policy which provides an elaborate procedure for determining that persons are the most qualified individuals for the job but, after so determining, forecloses employment to them solely because they reach age sixty-five is not reasonably related to any cognizable state interest.

6. Where part of a statute is unconstitutional and is inseparable from the remainder, the whole statute is invalid.

Charlotte E. Libman, Deputy Atty. Gen., Honolulu (Thomas T. Wood, Deputy Atty. Gen., and George Pai, Atty. Gen., Honolulu, on the briefs), for defendants-appellants.

Steven K. Christensen, Hilo (Christensen & Clark, Hilo, of counsel), for plaintiff-appellee.

Before RICHARDSON, C. J., KOBAYASHI, and OGATA, JJ., and FUKUSHIMA, Circuit Judge, in place of MENOR, J., disqualified, and LUM, Circuit Judge, assigned by reason of vacancy.

OGATA, Justice.

This is an appeal by the University of Hawaii, various of its officers, ¹ and the State of Hawaii, hereinafter referred to as appellants, from an order enjoining them from discharging appellee from his employment at a state college solely because he attained he age of sixty-five years. This court has jurisdiction pursuant to HRS § 602-5 (Supp.1975). We affirm.

In accordance with the employment policy imposed by the Board of Regents of the University of Hawaii (as opposed to any state statute regulating public employment) ² appellants had refused to continue appellee as a professor of English at Hilo College, a branch of the University of Hawaii, solely because he had attained the age of sixty-five. Appellee is a college professor who specializes in teaching 18th century and medieval literature and the history of the Engligh language. Having been first hired by appellants in the fall of 1966, appellee became tenured at Hilo College in the fall of 1969. He attained the age of sixty-five years on October 28, 1972.

The retirement policy of the Board of Regents is found in Appendix G of the Faculty Handbook for Manoa and Hilo Campuses. It reads as follows:

'Appendix G-Service beyond age 65 or retirement.

A person 65 years or older may be appointed to or continued on the faculty if it is demonstrated that his services are needed by the University and that he is more competent for the position than any other person available. Such appointment shall be for a term of one year or less, with reappointment being possible under the same test, but not beyond the age of 70.

Recommendations to the Board of Regents for post-65 appointments must include evidence of the need for and superior competence of the appointee, as well as evidence that a diligent search for an individual under 65 has been made. The dean of the college, or the director of the activity concerned, shall ascertain that the faculty members of the department or other unit in which the appointee will serve have had a timely opportunity, by a secret ballot, to express approval or disapproval of the appointment.

Except under the most unusual circumstances, a faculty member aged 65 or older shall not serve as department chairman or in a comparable capacity in a research or community service division of the University.'

Under the undisputed interpretation given Appendix G by appellants, whenever a faculty member who is about to attain the age of sixty-five requests a post-65 reappointment, a committee is constituted to make 'a diligent search for an individual under 65.' When a qualified applicant is found, the question of superior competence ³ is submitted to faculty members of the department involved who then vote on the question by secret ballot. After the chancellor or the president of the University has received the results of the secret ballot, by which he is not bound, he must then determine that the University needs the personal services of the particular post-65 professor before he will recommend post-65 reappointment to the Board of Regents. The Board does not consider the application for reappointment unless the president of the University places the question on its agenda, which he will not do unless he, or the chancellor of the branch college, has recommended the post-65 reappointment. In the past, the Board of Regents has made post-65 reappointments on at least two occasions.

That appellee is in excellent physical and mental condition is not disputed by appellants. Nor are his teaching credentials and qualifications in dispute, since his peers considered him by secret ballot of 7 to 3 to be more competent for the teaching position than any of the forty-five other applicants for his job. Appellant Chanceller Miwa, in accordance with his responsibility under Appendix G, determined, however, that appellee's personal services were not essential to the University since a replacement for appellee was available. Accordingly, he did not recommend post-65 employment of appellee.

Appellee challenged the validity of the University's post-65 employment policy set forth in Appendix G as violative of the equal protection of the laws guaranteed by the state and federal constitutions. After finding that statutes and regulations establishing age ceilings are not prohibited per se by the Equal Protection Clause and that there was no discriminatorily selective enforcement of the retirement policy, the trial court concluded that although the arguments in support of its mandatory retirement policy are not entirely devoid of merit, they could not withstand the strict judicial scrutiny required because the policy affects a fundamental right to public employment.

In State v. Johnston, 51 Haw. 195, 456 P.2d 805 (1969), appeal dismissed, 397 U.S. 336, 90 S.Ct. 1152, 25 L.Ed.2d 352 (1970), we explained the effect of the equal protection clause as follows:

'(w)hat is prohibited by the equal protection guaranty is class legislation, discriminating against some and favoring others. The guaranty was not intended to take from the states the right and power to classify the subjects of legislation, provided such classification of persons and things is reasonable for the purpose of legislation.' Id., 51 Haw. at 203, 456 P.2d at 810.

Therefore, the fact that the young are incidentally favored does not alone render Appendix G violative of equal protection so long as Appendix G furthers any valid state interest. But the fact that the state is acting as an employer does not authorize the state to foreclose the right to pursue public employment to a class of individuals without a rational basis therefor. York v. State, 53 Haw. 557, 498 P.2d 644 (1972); Hanson v. Unified Sch. Dist. No. 500, 364 F.Supp. 330 (D.Kan.1973); compare, State v. Wylie, 516 P.2d 142 (Alaska 1973). "(T)he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 ,S.Ct. 675, 685, 17 L.Ed.2d 629, (1967); Slochower v. Board of Education, 350 U.S. 551, 555, 76 S.Ct. 637, 639, 100 L.Ed. 692, 698 (1956); Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216, 222 (1952).

Courts cloak most ⁴ statutes with a presumption of constitutionality partially out of due regard for the decision made by the body constitutionally appointed to investigate, deliberate and enact rightful subjects of legislation, ⁵ Oregon v. Mitchell, 400 U.S. 112, 207, 91 S.Ct. 260, 306, 27 L.Ed.2d 272, 328 (1970) (Harlan, J., concurring); Kramer v. Union Free School District, 395 U.S. 621, 628, 89 S.Ct. 1886, 1890, 23 L.Ed.2d 583, 590 (1969), and partially because of the limitations inherent in the judiciary State v. Kahalewai, 56 Haw. 481, 485, 541 P.2d 1020, 1024 (1975); cf. San Antonio School District v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 1301, 36 L.Ed.2d 16, 48 (1973). Accordingly a party assailing a classification as violative of the state and federal constitutions generally has the burden of showing, with convicing clarity that the classification does not rest upon some ground of difference having a fair and substantial relation to the object of the legislation. ⁶ State v. Cotton 55 Haw. 148, 516 P.2d 715 (1973); Hasegawa v. Maui Pineapple Co., 52 Haw. 327, 475 P.2d 679 (1970); State v. Johnston, supra; State v. Diamond Motors Inc., 50 Haw. 33, 429 P.2d 825 (1967). We must ascertain, therefore, whether appellee has shown with requisite clarity that there is no rational basis for the University's requirements for faculty members who are between the ages of sixty-five and seventy and who otherwise meet bona fide occupational qualifications when no similar requirements are imposed upon younger professors.

Our legislature has, in the context of employment, placed age...