Schlitz v. Com. of Va.

• Decision Date: 19 August 1988
• Docket Number: No. 88-1578,88-1578
• Parties: 47 Fair Empl.Prac.Cas. 913, 47 Empl. Prac. Dec. P 38,187, 57 USLW 2121 Lester E. SCHLITZ, Plaintiff-Appellee, v. COMMONWEALTH OF VIRGINIA, Defendant-Appellant, and The Supreme Court of Virginia; Honorable Harry Lee Carrico, Chief Justice of the Supreme Court of Virginia, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 43

854 F.2d 43

47 Fair Empl.Prac.Cas. 913,

47 Empl. Prac. Dec. P 38,187, 57 USLW 2121

Lester E. SCHLITZ, Plaintiff-Appellee, v. COMMONWEALTH OF VIRGINIA, Defendant-Appellant, and The Supreme Court of Virginia; Honorable Harry Lee Carrico, Chief Justice of the Supreme Court of Virginia, Defendants.

No. 88-1578.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1988.

Decided Aug. 19, 1988.

Gregory E. Lucyk, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., H. Lane Kneedler, Chief Deputy Atty. Gen., Gail Starling Marshall, Deputy Atty. Gen., Cleo E. Powell, Sr. Asst. Atty. Gen., on brief), for defendant-appellant.

Gary Howard Simpson (Simpson and Ehrlich, P.A., Henry L. Marsh, III, Hill, Tucker & Marsh, on brief), for plaintiff-appellee.

Before WINTER, Chief Judge, and RUSSELL and WILKINS, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

Lester E. Schlitz, plaintiff, sued the Commonwealth of Virginia (the Commonwealth) claiming that the failure of the Virginia General Assembly (the Assembly) to reelect him to the position of circuit judge for the City of Portsmouth, Virginia upon the expiration of his term, constituted age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621 et seq. (1985). The Commonwealth moved to dismiss or for summary judgment pursuant to Rules 12(b)(1) and 56(b), F.R.Civ.P. It argued first, that Congress intended by the language of Sec. 630(f), ¹ to exclude judges elected by the legislature, as well as those elected by the voters, from the operation of the ADEA; second, that even if Congress intended not to exempt such judges, Congress was not empowered to extend the ADEA to cover any state judges; and third, that even if the ADEA did apply, this suit was barred by the doctrine of legislative immunity. The district court denied the motion, 681 F.Supp. 330 (1988).

The Commonwealth appeals contending only that the suit is barred by the doctrine of legislative immunity. We agree. We reverse and remand the case with direction to enter summary judgment for the Commonwealth.

I.

The Assembly declined to reelect plaintiff upon the expiration of his eight-year term on January 31, 1987. Plaintiff reached seventy on January 6, 1987. Under a state statute effective since March 1, 1962, Virginia state judges are required to retire at the age of seventy. Va.Code Sec. 51-167(a) (1982). In 1986, the ADEA was amended to proscribe the permissible mandatory retirement age of seventy. 29 U.S.C.A. Sec. 631(a) (West Supp.1988) (effective Jan. 1987). The Assistant Executive Secretary of the Supreme Court of Virginia, Frederick A. Hodnett, Jr., stated in an uncontroverted affidavit that "Virginia's mandatory retirement provisions have not been implemented or enforced since January 1, 1987" as a result of the 1986 amendments to the ADEA. Hodnett further indicated that two judges continue to sit notwithstanding their having reached the age of seventy.

Upon the General Assembly's failure to reelect him, plaintiff brought suit alleging discrimination in violation of the ADEA. As evidence, plaintiff cited a note by the Chief Justice of the Supreme Court of Virginia to the Governor of Virginia, indicating that under the Commonwealth's mandatory retirement provision for judges, a vacancy would be created upon the expiration of plaintiff's term, if the provisions of Virginia law are still valid. In the note, the Chief Justice also said that, absent a decision invalidating the Virginia law, "we must presume its continuing validity."

The district court denied the Commonwealth's motion, ruling that, in fact, Congress did intend to include state judges selected by other than popular vote within the purview of the ADEA, i.e. that it did not intend to exempt them, and that Congress was so empowered, see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 550, 105 S.Ct. 1005, 1017, 83 L.Ed.2d 1016 (1985) (rejecting the notion of "a sacred province of state autonomy"). The district court then stated in a footnote that defendant's claim of legislative immunity was lacking in merit. The district court rejected the reasoning of Apkin v. Treasurer and Receiver General, 401 Mass. 427, 517 N.E.2d 141 (1988) (ADEA not intended to apply to state judges not chosen by popular vote), and EEOC v. Massachusetts, 680 F.Supp. 455 (D.Mass.1988) (same), and concluded that state judges not elected by qualified voters are not exempt. The district court rejected defendant's argument that this creates an "absurd result" in that only the ten states that fail to select their judges by popular vote would be subject to the ADEA. It reasoned that the relevant distinction drawn by the statute is not elected versus non-elected judges but, more generally, elected versus appointed officials.

As we have said, the Commonwealth appeals solely on the issue of legislative immunity. We agree that the issue of legislative immunity is controlling, and so we turn to it.

II.

Whether or not Apkin and EEOC were correctly decided, it is clear that the issue addressed in those cases is different from that presented in this case. In Apkin and EEOC it was uncontroverted that the reason for the state's failure to reappoint the plaintiff judges was the state's mandatory retirement law. See Apkin, 401 Mass. at 429, 517 N.E.2d at 142 ("There is not the least doubt that, for the purposes of State law, the 1972 amendment [to the Massachusetts Constitution] compels the retirement of a Massachusetts judge who attains the age of seventy."); EEOC, 680 F.Supp. at 457 ("Since the effective date of this 1972 amendment, judges in the Commonwealth have been mandatorily retired at age 70."). In this case, by contrast, the Commonwealth has made clear that as a result of the ADEA, its mandatory retirement law for judges is no longer being observed. In its answer to plaintiff's complaint the Commonwealth set forth alternative bases for its failure to reappoint plaintiff, including first, an agreement made when plaintiff was elected that he would serve only a single term, ² and second, that complaints regarding plaintiff's capabilities and demeanor on the bench indicated that he had not performed satisfactorily as a sitting judge. Thus, while the Apkin and EEOC courts addressed first, whether the ADEA's bar to a mandatory retirement provision was intended to apply to non-elected state judges, and second, if so, whether the ADEA displaced the state's retirement provision or whether the tenth amendment barred its application, we are not being asked to consider whether the Virginia statute is valid on its face. Instead, we are being asked to consider whether the Assembly's purported motives for declining to reelect plaintiff are a pretext for age discrimination. This inquiry, in our view, runs squarely afoul of the doctrine of legislative immunity.

The rationale underlying the doctrine of legislative immunity was succinctly set forth by the Supreme Court in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), in which Justice Frankfurter stated for the Court:

Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives.

Id. at 377, 71 S.Ct. at 788. For that reason, the Supreme Court extended the protection in the speech and debate clause, U.S. Const. Art. I, Sec. 6, for members of the United States Senate and House of Representatives, to state legislators, holding that state legislators are protected by the doctrine of legislative immunity for actions taken within the "sphere of legitimate legislative activity." Id. at 376, 71 S.Ct. at 788. See also Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 405, 99 S.Ct. 1171, 1179, 59 L.Ed.2d...