Reilly v. Robertson, 376

Docket NºNo. 376
Citation266 Ind. 29, 360 N.E.2d 171
Case DateFebruary 22, 1977
CourtSupreme Court of Indiana

Page 171

360 N.E.2d 171
266 Ind. 29, 14 Fair Empl.Prac.Cas. (BNA) 852,
13 Empl. Prac. Dec. P 11,626
Thomas E. REILLY, Jr., et al., Appellants,
Mary F. ROBERTSON and Esther Davis, Appellees.
No. 376 S 92.
Supreme Court of Indiana.
Feb. 22, 1977.
Rehearing Denied April 21, 1977.

[266 Ind. 30]

Page 172

Theodore L. Sendak, Atty. Gen., Donald P. Bogard, Anthony J. Metz, III, Deputy Attys. Gen., Indianapolis, for appellants.

Theodore Lockyear, Steve Barber, Evansville, for appellees.

Lewis C. Bose, Indianapolis, Michael Marchese, Jr., Daniel B. Seitz, Fort Wayne, Bose, McKinney & Evans, Indianapolis, of counsel, for amicus curiae Association of Indiana Legal Reserve Life Insurance Companies.

DeBRULER, Justice.

This is an appeal from the judgment of the Vanderburgh Circuit Court invalidating the adoption of separate actuarial tables for men and women retired teachers for the computation of benefits to be paid by the Indiana State Teachers' Retirement Fund.

We have permitted transfer of this appeal to this Court pursuant to Ind.R.App.P. 4(A)(10), recognizing that it 'involves a substantial question of law of great public importance and that an emergency exists for a speedy determination.'

Appellee Mary Robertson is a female teacher in the Evansville-Vanderburgh County School System, part of whose salary is withheld and paid into the Indiana State Teachers' Retirement Fund ('Fund'). Appellee Esther Davis is a retired teacher who had taught in the same system, who had also contributed to the Fund, and who was receiving benefits [266 Ind. 31] therefrom. Appellees filed suit in the Vanderburgh Circuit Court, alleging that by the use of actuarial tables adopted in 1972, appellees would receive approximately fifteen dollars less per month in retirement benefits than male teachers of the same age and equivalent teaching experience. This action was brought on behalf of themselves and the class of female teachers retired or eligible for retirement, against the Board of Trustees of the Indiana State Teachers' Retirement Fund and its members as individuals. Appellees advanced four theories of recovery:

(1) That the adoption of sex-differentiated mortality tables deprived appellees of rights under the United States and Indiana Constitutions and under Indiana statutory law. Specifically appellees alleged violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Rights and Privileges Clause, Art. 1, § 23, of the Indiana Constitution, and that the Board exceeded the authority of its enabling statute, Ind.Code §§ 21--6--1--1 to --6--15--1 (Burns 1975).

(2) That the Board's action deprived appellees of their civil rights contrary to the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1970).

(3) That the Board's action violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e--2 (1970).

(4) That the Board's action 'impaired the obligation of contracts' contrary to Art. 1, § 10, of the United States Constitution and Art. 1, § 24, of the Indiana Constitution.

The relief requested was an injunction requiring the payment of equal benefits to male and female retired teachers; a declaratory judgment invalidating the Board's action, and an accounting for the differences in benefits paid, and damages equal thereto.

The trial court severed the trial of the issues of liability and damages. After discovery, trial, and briefing, the court rendered judgment for the appellees on their first and third theories of recovery, holding that:

[266 Ind. 32] (1) The use of separate mortality tables deprived plaintiffs of equal protection and equal privileges, in that there was no rational basis for the classification of retired teachers by sex.

(2) The differential payments constituted an unlawful employment practice under Title VII of the Civil Rights Act of 1964.

The trial court held that the Board members were not liable under § 1983, and that the Board had not 'impaired the obligation of contracts.' The Court appointed a master pursuant to Ind.R.Tr.P. 53 to investigate

Page 173

the amount of individual damages for members of the class. The master was ordered paid an hourly rate plus expenses, which cost was assessed against the Fund.

The Board filed its motion to correct errors and appealed, raising the following issues:

(1) Whether payment of differentail retirement benefits to male and female retired teachers violates the Equal Protection Clause (or the Rights and Privileges Clause of the Indiana Constitution).

(2) Whether the Due Process Clause of the Fourteenth Amendment prohibits the Board's action.

(3) Whether such payment violates the Civil Rights Act, and therefore the Supremacy Clause (United States Constitution, Art. VI, cl. 2).

(4) Whether the trial court erred in assessing the fees paid the master against the Fund.

(5) Whether the judgment below is supported by sufficient evidence.


The Indiana State Teachers' Retirement Fund was established in 1915, 'to be used and applied in the payment of annuities to persons engaged in teaching or in the supervision of teaching in the public schools of the state . . ..' Ind.Code § 21--6--1--1 (Burns 1975). The Fund is administered [266 Ind. 33] by its board of trustees. Ind.Code § 21--6--1--3. The Fund consists of an annuity account, into which member teachers contribute a portion of their salaries, (3% annually at the time of the trial of this cause) and a pension reserve account, consisting of funds contributed by the State.Ind.Code § 21--6--1--10.

The Board is authorized to conduct actuarial investigations at least once every six years to determine the level of contributions necessary to provide the required benefits. Ind.Code § 26--6--1--6(b). The benefits provided are of seven different forms, at the retired teacher's option. Teachers' Retirement Fund Rules 22 § 1, 25, Ind. Adm. Rules & Reg. (21--6--1--11) --35, --49 (Burn's Code Ed. 1976). Some of these guarantee repayment of the teacher's contribution, others some payment for life, others some benefit to the teacher's survivors.

The pension portion of a retiree's check is approximately 87% of the total amount of the check and is paid solely from the contribution of the State. The annuity portion of a retiree's check is approximately 13% of the check total and represents the participation of the retiree in the annuity account contributed by teachers. The pension portion is the same for all teachers who are similarly situated with respect to age, years of service, salary and date of retirement. The annuity portion is not the same for all teachers so similarly situated, in that women retirees receive approximately fifteen dollars less per month than men retirees; and this differential of course reduces the woman's total monthly check by a life amount. The differential in the annuity portion is the result of the adoption and use by the fund of the '1971 Group Annuity Mortality Tables-Male' to calculate the annuity portion due males, and the adoption and use by the Fund of that same table with a five year set-back in the case of women.

Prior to 1972 the Fund for many years in making the calculation of annuity portions used a mortality table which did not subclassify annuitants by sex, and in fact similarly[266 Ind. 34] situated male and female annuitants received the same amounts. The contributions of men and women teachers have been equal. The eligibility requirements for participation in the retirement program have been the same for men and women. And both prior to and after 1972, the life expectancy of women as a group has been greater than that of men as a group.

The annuity side of the retirement program for teachers operates much like an annuity contract sold in the private sector. For a sum certain insurer contracts to pay a periodic sum to the annuitant for a term certain or for life. An annuity insures against the risk of living too long while a life insurance policy insures against the risks resulting from premature death. And

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in the private sector, the terms of annuity contracts are struck by the use of separate mortality tables for men and women.

We turn now to appellant Fund's first contention which is that the trial court erred in adjudging that the adoption and use by the Fund of separate mortality tables to calculate the annuity payments for men and women, deprived appellees of the equal protection and equal privileges of the law.


From the record before us, it clearly appears, and is uncontested between these parties, that the Circuit Court of Vanderburgh County was a tribunal vested with authority to adjudicate appellees' constitutioinal claims; that the appellees have standing to make those claims; and that those claims have been fully litigated in a suitable adversary atmosphere, and permit of reasonable judicial resolution. Board of Commissioners v. Kokomo City Plan Commission, (1975) Ind., 330 N.E.2d 92.


We turn next, as it is our duty to do, to determine if this case can be justly disposed of on non-constitutional grounds. Board of Commissioners v. Kokomo City Plan Commission, supra. Passwater v. Winn, (1967) 248 Ind. 404, 229 N.E.2d 622. As part of its conclusions, the trial court stated in its judgment:

'12. Pursuant to IC 1971, 21--6--1--6(a) Burns' Ind.Stat.Ann. § 28--4806(a):

'The board of trustees of the Indiana State teachers' retirement fund shall have power to adopt and enforce all necessary by-laws and regulations for the government and administration of the department and the control and investment of the funds committed to its care not inconsistent with the provisions of this act . . . and shall have discretionary power in determining all matters pertaining to its trust not specifically provided for in this act. . . .'

13. Pursuant to IC 1971,...

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  • Johnson v. St. Vincent Hospital, Inc., s. 1078
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    ...... Reilly et al. v. Robertson, et al., (1977) 266 Ind. 29, 360 N.E.2d 171; Passwater v. Winn, (1967) 248 Ind. ......
  • State v. Nixon, 378S44
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    • December 13, 1984
    ...... Burns v. Richardson, 384 U.S. 73, 89 n. 16, 86 S.Ct. 1286, 1295 n. 16, 16 L.Ed.2d 376 (1966). See also Karcher, 103 S.Ct. at 2663. Second, defendants preserved the integrity of ... Reilly v. Robertson, 266 Ind. 29, 37, 360 N.E.2d 171, 175 (1977), cert. denied, 434 U.S. 825, 98 S.Ct. ......
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