Motion to Dismiss — Slate v. Noll

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-704

IVeEIGuCC0_—"c“c—_“o=Cnogo?0hnOOOnDn9an)olT_==_—_y_—X———_—_—_—————

SHERWOOD SLATE,

Appellant,

U.

JOSEPH N. NOLL,

Appellee.

--—-

—

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT

OF WISCONSIN

MOTION TO AFFIRM

oS

BRONSON C. LA FOLLETTE

Attorney General

CHARLES D. HOORNSTRA

Assistant Attorney General

GEORGE B. SCHWAHN

Assistant Attorney General

Attorneys for Appellee

P.O. Address:

114 East, State Capitol

Madison, Wisconsin 53702

(608) 266-8690

i

INDEX

Page

QUESTIONS PRESENTED .............cccccccccece 1

STATEMENT OF THE CASE .............ccccceece 2

a NS, RUS a a xs

The Constitutional Issues Raised

Are Not Substantial. ................... 8

A. The retirement of the

appellant at age 65 did not

deny him equal protection of

Ne en ene veoh ¥sesie ks 8

1. This court has con-

sistently upheld the

constitutionality of man-

datory retirement

statutes which are

rationally related to a

legitimate state interest...... 8

2. The Wisconsin statutes

involved are rationally

related to furthering a

legitimate state interest..... 10

B. The retirement of appellant at

age 65 did not deprive him of

| liberty and property without

due process of law. ............. 13

1. Compulsory retirement

provisions should not

fall as violative of the

due process clause

because a rationally bas-

ed statutory classifica-

ii

Page

tion may also be labelled

an irrebuttable presump-

A cetanesmrseeieee 13

2. Due process protects

only liberty and proper-

ty interests. ................ 14

3. Appellant has raised no

substantial federal ques-

tion as to liberty in-

EL: Wonuddis Waed ore ebay a « 15

4. Appellant has raised no

substantial federal ques-

tion as to property in-

passsenns MELEE CCC eee 16

5. In any event, the state’s

interests prevail. ........... 18

I ny 65 hx Cbs CWAG eibin Ge nkbvescokebcccns 20

CASES CITED

Armstrong v. Howell,

371 S. Supp. 48 (D. Neb. 1974)................ 16

Bishop v. Wood,

oS es 16

Board of Regents v. Roth,

oo 17-18

Cannon v. Guste,

11 FEP Cases 675 (1975)

aff'd 423 U.S. 918 (1975) ................... 10,12

Dandridge v. Williams,

ee )

iil

Frontiero v. Richardson, :

G11 UB. Gil CORTE) ov ccscctcccens Se aieas eats ee 14

Gault v. Garrison,

569 F. 2d 993 (7th Cir. 1977) :

cert. den. 440 UB. B46 GOTO). ..n. ccc cccccccevccss 10

Gossman v. State Employees f

Retirement System,

177 Neb. 326, 129 N.W.

BO OF TERE 6 viksvetencesisddesce ue eeeee 16-17

Johnson v. Lefkowitz,

566 F. 2d 866 (2nd

Cir. 1977), cert. den. 440

iF SS fF: PR eee eS 10,11,14,18-19

Massachusetts Bd. of Retirement

v. Murgia, 427 U.S. 307 (1976) ...... 9-10,13,14,16

Mcllvanie v. Pennsylvania State

Police, 6 Pa. Commw. Ct. 505,

296 A. 2d 630 (1972)

aff'd 309 A. 2d 801 (1973)

455 UD. Fe Cee vvecideteeivisesaeeecuan 8,14

Palmer v. Ticcione,

576 F. 2d 459 (2nd Cir. 1978)

cert. den. 440 U.S. 945 (1979). ... 10,12,14,15,19-20

Paul v. Davis,

6 UB. Gao CG + vccksdeckcctcusene ee 15

Personnel Adm’r of Massachusetts

v. Fenney,

US. —__, 99 S.Ct.

BO CEOUEE ovcccntdacninias bocce 16

Rubino v. Ghezzi,

512 F. 2d 431 (2nd Cir. (1975)

cert. den. 423 U.S. 891 (1975)....... 14

iv

San Antonio Independent School

. District v. Rodriguez,

411 U.S. 1 (1978)

Shapiro v. Thompson,

394 U.S. 618 (1969)

Slate v. Noll,

474 F. Supp. 882

(W.D. Wis. 1979)

Trafelet v. Thompson,

594 F. 2d 623 (7th Cir. 1979)

cert. den. ) nas (1979) ...... 10,12,14,19

Vance v. Bradley,

440 U.S. 93 (1979)

Weisbrod v. Lynn,

383 F. Supp. 933 (D.C. 1974),

aff'd 420 U.S. 940 (1975)

reh. den. 423 U.S. 886 (1975)

STATUTES CITED

Wisconsin Statutes

Statutes 1973

v

Page

Statutes 1965

EP eT TT er reno rere Tet Tey Pere 3

Statutes 1963

SRA Rey freee erty ere ree rrr rire er ere 2

Se Oe SR 5a hin cic sede seducessecoesasess 2

Wisconsin Laws of 1977

Re bcd eas cceensdevesduadeceaseeons 5

Cor o6teceusansseka cc eeeernes 5

Wisconsin Laws of 1969

Pr eee ree TT rer rr rrr eet ee 3

Wisconsin Laws of 1967

Sa ee I cbs an dosaeckcseeded eae chee 2-3

CONSTITUTIONAL PROVISIONS

Wisconsin Constitution

Pte ere reer 11

United States Constitution

Pourteemth AmonGmoent.......sccscoscesoveces 8,10

vi

Page

TEXTS

House of Representatives Select

Committee on

Aging, Mandatory Retirement:

The Social and Human Cost of

Enforced Idleness, Comm. Pub.

No. 95-91 (August, 1977)................ccccee, 7

Irrebuttable Presumption Doctrine

in the Supreme Court (The), 87 Harv. L. Rev.

1534 (1974) ...

Senate Report No.

(October, 1977)

95-493

IN THE

SUPREME COURT OF THE UNITED STATES

October Terrn, 1979

No. 79-704

SHERWOOD SLATE,

Appellant,

v.

JOSEPH N. NOLL,

Appellee.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT

OF WISCONSIN

MOTION TO AFFIRM

QUESTIONS PRESENTED

1. Did the retirement of the appellant at age 65

pursuant to the provisions of Wis. Stats. §§41.02 (23)

and 41.11 (1) (1973) deny him equal protection of the

law?

2

2. Did the retirement of the appellant at age 65

pursuant to the provisions of Wis. Stats. §§41.02 (23)

and 41.11 (1) (1973) deprive him of liberty and property

without due process of law?/!

STATEMENT OF THE CASE

The appellant, Sherwood Slate, was born on

January 7, 1909, and employed as a hearing examiner

by the Wisconsin Industrial Commission on September

21, 1964, at the age of 55. At that time, the provisions

pertaining to the Wisconsin Retirement Fund were

contained within Wis. Stats. ch. 66 (1963). Wisconsin

Statutes §66.906 (1) (a), thereof, provided that any

participating employe in the fund, except state ap-

pointed officers, shall be retired at the end of the first

calendar quarter of the year in which he reached 65,

unless the appointing official authorized him to

continue in an employment for a period or periods not

to exceed one year at a time. Prior to his employment

with the state, the appellant was engaged in the

private practice of law in Milwaukee, Wisconsin.

On October 20, 1966, the Wisconsin Industrial

Commission adopted a policy which provided that an

employe could request an extension of his normal

retirement date until the end of the calendar year. Said

Commission was renamed the Wisconsin Department

of Industry, Labor and Human Relations by ch. 75,

_ “The appellant at pages 3 and 4 of his J urisdic-

tional Statement cited the Wisconsin statutes as of the

year 1975, instead of 1973 which were applicable at the

time. However, the provisions contained therein were

the same. It should also be noted that Wis. Stats.

§42.531 pertained to those members in the classified

service of the state within the state teachers retirement

system contained in Wis. Stats. ch. 42 (1973).

3

sec. 21, Wisconsin Laws of 1967, and placed under the

direction and supervision of a three-member Industry,

Labor and Human Relations Commission. Those

provisions contained in Wis. Stats. ch. 66, pertaining

to the Wisconsin Retirement Fund were repealed,

recreated, renumbered, and amended by ch. 158,

Wisconsin Laws of 1969, and placed within Wis. Stats.

ch. 41 (1971). Wisconsin Statutes §41.02 (23), thereof,

set forth the “normal retirement date” for regular civil

service employes included in the fund at 65. Wisconsin

Statutes §41.11 (1) thereof provided that any par-

ticipating employe, except an officer elected by vote of

the people, shall be retired at the end of the first

calendar quarter within which he reaches his normal

retirement date unless his employement is continued

by his employer or appointing authority.

On November 27, 1972, the Department of In-

dustry, Labor and Human Relations adopted a policy

which provided that all employes must retire at the

end of the calendar quarter in which they reach 65 and

that no extensions would be granted. However, since

some employes had already been extended through

calendar year 1973, the Department agreed to consider

requests made by December 31, 1972, for extensions to

the end of 1973. (Affidavit of Stephen J. Reilly, Doc.

32; Exhibit A attached to the Complaint, Doc. 2).

On June 22, 1973, the appellant, by letter,

requested the Industry, Labor and Human Relations

Commission to grant him an extension of his retire-

ment date for one year. The Commission by letter

dated July 17, 1973, denied his request in accordance

with its policy that no extensions would be granted for

any Department employe beyond December 31, 1973.

On February 4, 1974, the appellant again requested an

extension of his retirement date, which also was

denied by the Commission on February 13, 1974.

(Exhibits B and C attached to the Complaint, Doc. 2;

Affidavit of Stephen J. Reilly, Doc. 32).

+

The appellant became 65 on J anuary 7, 1974, and

his employment with the Department was terminated

on April 8, 1974. He was granted a monthly annuity or

pension of $98.03, effective April 9, 1974, based upon

9.042 years of creditable service. He selected option

three which provided for a survivor annuity as well as

an annuity for himself. Had he selected option one, or

just an annuity for himself, he would have received a

monthly annuity of $158.34. (Affidavit of Clyde M.

Sullivan, Doc. 31). Appellant’s request for reinstate-

ment and reemployment dated J uly 24, 1974, was

denied by the Commission on August 2, 1974. (Af-

fidavit of Stephen J. Reilly, Doc. 32).

The appellant filed a complaint with the United

States District Court for the Western District of

Wisconsin on September 20, 1974. The complaint

alleged that Wis. Stats. §42.531 and the compulsory

retirement policies of Wisconsin and the Department of

Industry, Labor and Human Relations violated the

fourteenth amendment of the United States Constitu-

tion, since they deprived and are depriving appellant

of due process and equal protection of the law. The

appellant requested the court: (1) to convene a three-

judge court; (2) to issue a preliminary injunction and to

require his reinstatement; (3) to adjudge that Wis.

Stats. §42.531 and the Department’s administrative

policies adopted pursuant thereto to be un-

constitutional; (4) to issue a permanent injunction; and

(5) to issue an order requiring the continuance of his

employment until such time as he voluntarily retires or

is physically or mentally incapable of performing his

assigned duties. (Complaint, Doc. 2).

A motion to dismiss the complaint was filed on

October 2, 1974. (Doc. 4). The appellant filed a motion

for the convening of a three-judge court on October A

1974. (Doc. 5). An order designating a three-judge court

was entered on October 31, 1974. (Doc. 6). The

appellant filed an amendment to the complaint on

November 1, 1974, to include Wis. Stats. §§41.11 (1) and

41.02 (23). (Doc. 7). On December 10, 1974, the

appellant filed a motion for a preliminary injunction

and for summary judgment. (Doc. 10).

Pursuant to §§44 and 993-998 of ch. 29, Wisconsin

Laws of 1977, the Department of Industry, Labor and

Human Relations was placed under the direction and

supervision of a secretary rather than the com-

missioners. The motion to dismiss was denied by the

court by order dated May 25, 1978. (Doc. 15). On the

same date, the court issued another order which

provided that it proposes to decide that merits of the

case following the hearing scheduled for June 21, 1978,

and that each party shall serve and file such

additional evidence he desires to offer by June 15,

1978. (Doc. 16). An answer to the complaint together

with affidavits was filed on June 5, 1978. (Doc. 17, 18,

and 19). On June 15, 1978, the appellant filed a series

of affidavits. (Doc. 20-25).

The statutory purposes of the Wisconsin public

employe retirement system is in effect set forth in Wis.

Stats. §§40.01 (1) and 41.01 (1) (1973), concerning the

Wisconsin public employe trust fund and retirement

fund. They are: (1) to protect public employes and their

beneficiaries against the hardships of old age; (2) to

promote economy and efficiency in public service by

facilitating the attraction and retention of competent

employes; (3) to enhance employe morale; and (4) to

provide for the orderly and humane departure of

employes. Mr. John L. Zimbeck, Deputy Secretary of

the Wisconsin Department of Employe Trust Funds,

stated that some age has to be selected to provide a

reference point on which actuarial equivalents can be

based. (Zimbeck Affidavit, Doc. 19). Mr. Blair Testin,

Director of Retirement Research for the State of

6

Wisconsin stated that the normal retirement age for

regular employes was established by the Wisconsin

Legislature for the following reasons: (1) to provide for

an orderly removal of older workers without hardships

or prejudice; (2) to permit an employer to plan for

personnel needs in an orderly manner; (3) to permit

employes to plan for retirement based upon a specific

date; (4) to permit the employment of young workers to

fill the vacancies created; and (5) to permit the

corrections of past discriminations based upon sex and

race. (Testin Affidavit, Doc. 18).

Some employes have been continued in state

employment by their employer after their normal

retirement date. As of March 13, 1978, 216 men and

219 women over age 65 were continued in employment.

Policemen and firemen, whose normal retirement date

is 55, sometimes continue their employment. Likewise,

judges who have a normal retirement date for pension

purposes of 62 frequently work until their compulsory

retirement age of 70. The calculations and com-

putations of pension annuities for such employes does

not involve any administrative inconvenience,

however, a normal retirement date is required to

provide a_ reference point on which actuarial

equivalents can be based. (Supplemental Affidavit of

John L. Zimbeck, Doc. 23).

The appellant, Sherwood Slate, in his affidavit,

states that the appellee, in terminating his employ-

ment failed to consider his experience, training, and

competence to remain in employment; and that this

action reduced his income, standard of living, and has

caused him considerable concern. (Doc. 21). Dr. H.K.

Parks, in his affidavit, concluded that people age at

different rates, that the age of an individual has no

relationship to competency to perform ordinary tasks

of employment, and that retirement may affect the

health and well-being of a patie... (Doc. 25).

Appellant’s attorney by affidavit requested the court to

take judicial notice of certain facts, inter alia, in-

cluding those contained in the report of the House of

Representatives Select Committee on Aging, Man-

datory Retirement: The Social and Human Cost of

Enforced Idleness, Comm. Pub. No. 95-91 (August,

1977), and Senate Report No. 95-493 (October, 1977),

which resulted from hearings conducted by the House

of Representatives prior to the enactment of the 1978

amendments to the Age Discrimination in Employ-

ment Act.

The court held that the appellant failed to meet the

burden of proving that the Wisconsin statutes

providing for mandatory retirement of state employes

at age 65 were not rationally related to furthering of a

legitimate state interest, and accordingly, dismissed

the action. Slate v. Noll, 474 F. Supp. 882, 888 (W.D.

Wis. 1979). The appellant appeals therefrom.

8

ARGUMENT

The Constitutional Issues Raised Are

Are Not Substantial.

A. The retirement of the

appellant at age 65 did not

deny him equal protection of

the law.

l. This court has con-

sistently upheld the

constitutionality of man-

datory retirement

statutes which are

rationally related to a

legitimate state interest.

Although this court applied the strict scrutiny or

the rational basis test to cases involving

constitutional challenges to statutes involving educa-

tion and welfare (Shapiro v. T. hompson, 394 U.S. 618

(1969); Dandridge v. Williams, 397 US. 471 (1970);

and San Antonio Independent School District v.

Rodriguez, 411 U.S. 1 (1973)), the early challenges to

the constitutionality of mandatory retirement statutes

were dismissed on the ground that they failed to

involve a substantial federal question. A Pennsylvania

statute requiring mandatory retirement of policemen at

age 60 was held not to violate the Federal Age

Discrimination in Employment Act or the fourteenth

amendment to the United States Constitution.

Mcllvanie v. Pennsylvania State Police, 6 Pa. Commw.

Ct. 505, 296 A. 2d 630 (1972), aff’d 309 A. 2d 801 (1973).

An appeal therefrom was dismissed by this Court for

want of a substantial federal question. Mcllvanie v.

Pennsylvania State Police, 415 U.S. 986 (1974). The

court in Weisbrod v. Lynn, 383 F. Supp. 933 (D.C. 1974),

dismissed a challenge to the mandatory retirement of

federal employes at age 70 for want of a substantial

9

federal question. Weisbrod v. Lynn, aff’d 420 U.S. 940

(1975), reh. den. 423 U.S. 886 (1975).

The Court, however, considered whether the strict

scrutiny or rational basis test should be applied to

mandatory retirement statutes in Massachusetts Bd. of

Retirement v. Murgia, 427 U.S. 307 (1976). In that case

the appellee alleged that the Massachusetts’ statute

requiring a uniformed state officer to be retired at age

50 denied him equa! protection of the law in violation

of the fourteenth amendment. This court stated at

pages 312-13 that:

We need state only briefly our reasons for

agreeing that strict scrutiny is not the proper

test for determining whether the mandatory

retirement provision denies appellee equal

protection. San Antonio School District v.

Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 1287,

36 L.Ed. 2d 16 (1973), reaffirmed that equal

protection analysis requires strict scrutiny of a

legislative classification only when the

classification impermissibly interferes with the

exercise of a fundamental right or operates to

the peculiar disadvantage of a suspect class.

Mandatory retirement at age 50 under the

Massachusetts statute involves neither situa-

tion.

The Court in applying the rational basis test held:

In this case, the Massachusetts statute

clearly meets the requirements of the Equal

Protection Clause, for the State’s classification

rationally furthers the purpose identified by

the State: Through mandatory retirement at

age 50, the legislature seeks to protect the

public by assuring physical preparedness of its

uniformed police. Since physical ability

10

generally declines with age, mandatory retire-

ment at 50 serves to remove from police service

those whose fitness for uniformed work

presumptively has diminished with age. This

clearly is rationally related to the State’s

objective.

Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

at 315-16.

Since then, the courts have applied the rational

basis test in determining whether statutes involving

mandatory retirement violate the Equal Protection and

Due Process Clauses contained in the fourteenth

amendment. Cannon v. Guste, 11 FEP Cases 675

(1975), aff'd 423 U.S. 918 (1975); Gault v. Garrison, 569

F. 2d 993 (7th Cir. 1977), cert. den. 440 U.S. 945 (1979);

Vance v. Bradley, 440 U.S. 93 (1979); Johnson uv.

Lefkowitz, 566 F. 2d 866 (2nd Cir. 1977), cert. den. 440

U.S. 985 (1979); Palmer v. Ticcione, 576 F. 2d 459 (2nd

Cir. 1978), cert. den. 440 U.S. 945 (1979); and Trafelet v.

Thompson, 594 F. 2d 623 (7th Cir. 1979), cert. den. ___

U.S. __ (1979). The courts upheld the constitutionality

of the mandatory retirement statutes involved in the

above cases with the exception of Gault. The appellee,

in said case, failed to identify any state purpose other

than to hint that that statute was designed to remove

unfit teachers. Gault v. Garrison, 569 F. 2d at 995-96.

2. The Wisconsin statutes

involved are rationally

related to furthering a

legitimate state interest.

As previously noted, Wis. Stats. §41.02 (23) (1973)

provided for the norma! retirement date of a state civil

service employe at age 65. Likewise, Wis. Stats. §41.11

(1) (1973) provided that a state civil service employe

shall be retired at the end of the calendar quarter year

11

in which he reaches his normal retirement date unless

continued in employment by his employer. Thus, the

Wisconsin Legislature delegated to the heads of the

various state agencies the discretion to continue the

employment of an employe beyond his normal retire-

ment date. Acting pursuant to then existing state law,

the Wisconsin Department of Industry adopted a

policy which provided that all employes must retire at

the end of the calendar quarter in which they reach 65

and that no extensions would be granted. Thus, this

policy applied across-the-board to all its employes.

Wisconsin Statutes §41.02 (23) (1973) provide for

different normal retirement dates for other public

employes included within the Wisconsin retirement

system such as: protective employes at age 60 and

those elected by the voters including judges and

members of the Legislature at age 62. However, judges

were not required to retire until age 70. Wis. Const. art.

VII, sec. 24 (2). This Court in Vance v. Bradley, 440

U.S. at 97 stated: “Thus, we will not overturn such a

statute unless the varying treatment of different

groups or persons is so unrelated to the achievement of

any combination of legitimate purposes that we can

only conclude that the legislature’s actions were

irrational.”

Unquestionably the state interests are legitimate.

The lower court identified them as achieving and

maintaining a certain level of physical, mental, and

emotional competence among governmental employes

as well as to promote employe planning for retirement,

meeting personnel needs in an orderly manner,

employing younger workers, correcting past

discrimination, and removing older workers in an

orderly manner. (A-Ap. 6-9). No substantial federal

question is raised in respect to these objectives. The

court in Johnson v. Lefkowitz, 566 F. 2d at 869, held

that a mandatory retirement policy requiring civil

12

service officers at age 70 would allow department

heads to plan the training and advancement of their

employes and motivates young workers to acquit

themselves well and progress through the ranks was

reasonably related to legitimate state interests in

efficiency and economy. In Cannon uv. Guste, 11 FEP

Cases at 676, the court held that a statute re-

quiring the mandatory retirement of state employes

at age 65 was substantially related to the state’s

economic objective of maintaining an efficient, vig-

orous, and healthy civil service and of establishing a

feasible system for promotion of younger employes. In

Palmer v. Ticcione, 576 F. 2d at 462, the court held

that a state mandatory retirement system which opens

up more places for minorities and assures predictabili-

ty and ease in establishing and administering pension

plans was rationally related to legitimate state

objectives. In Trafelet v. Thompson, 594 F. 2d at 626,

the court concluded that “we are not limited to the

legislative purpose articulated by the state at the time

of enactment, although even if we were we would

sustain the statute.”

Not only is there no substantial federal question as

to the legitimacy of state objectives, neither is there a

substantial federal question as to the rationality of

drawing the line at age 65. As the lower court correctly

noted, (A-Ap. 10):

But plaintiff [appellant] has not succeeded in

the essential, though perhaps impossible, task

of showing that there is no_ significant

discrepancy in the incidence of incompetence

resulting from aging among. those ap-

proximately 55 to 60 years of age as contrasted

with those approximately 70 to 75 years of age.

In the absence of such a_ showing, the

legislative choice of an age between 60 and 70

must be accepted.

13

There can be no substantial doubt of the correctness of

the court’s holding in light of this Court’s action in

upholding an age 50 cut-off in Murgia for police

officers and an age 60 cut-off in Vance for those in the

foreign service.

Appellant cannot successfully argue that Murgia

and Vance concerned only discreet groups of employes

rather than generalized civil service rules. Those cases

concerned discreet groups only because it was

necessary to examine the justification for treating

them differently than employes generally are treated.

This Court gave no hint that across-the-board

generalizations were impermissible. Indeed, it un-

derscored the importance of deferring to legislative

line-drawing despite resultant imperfections in under

or over inclusiveness. Vance v. Bradley, 440 U.S. at

108-09. Similarly, appellant cannot at once fault the

generalized rule because it is generalized and at the

same time complain that there are, in addition,

discreet groups of employes in Wisconsin not bound by

the age 65 cut-off, especially since appellant does not

purport to show that the classification “could not

reasonably be conceived to be true by the governmen-

tal decisionmaker.” Vance v. Bradley, 440 U.S. at 111.

B. The retirement of appellant at

age 65 did not deprive him of

liberty and property without

due process of law.

1. Compulsory retirement

provisions should not

fall as violative of the

due process clause

because a rationally bas-

ed statutory classifica-

tion may also be labelled

an irrebuttable presump-

tion.

14

Many lower courts have held that a due process

attack on compulsory retirement as establishing an

irrebuttable presumption “is analytically very similar

to the equal protection [claim].” Palmer v. Ticcione,

576 F. 2d at 463 and Johnson v. Lefkowiiz, 566 F. 2d at

869.

In addition, in the context of mandatory retire-

ment, this due process claim has been consistently

rejected by the courts. Mcllvanie v. Pennsylvania State

Police, 415 U.S. 986; Weisbrod v. Lynn, 383 F. Supp.

933; Palmer v. Ticcione, 576 F. 2d 459; Trafelet v.

Thompson, 594 F. 2d 623; Johnson v. Lefkowitz, 566 F.

2d 866; and Rubino v. Ghezzi, 512 F. 2d 431 (2nd Cir.

1975), cert. den. 423 U.S. 891 (1975). The reason for this

rejection is that the doctrine of irrebuttable presump-

tions is considered as “coextensive with the equal

protection clause.” Trafelet v. Thompson, 594 F. 2d at

630. Thus, as the court in Palmer properly concludes

“{ilf the statutory classification is sustainable as

rationally based, then it should not fell because it

might also be labeled a presumption.” Palmer uv.

Ticcione, 576 F. 2d at 463.

Granted, the irrebuttable presumption doctrine

remains applicable to cases involving suspect

classifications. See Johnson uv. Lefkowitz, 566 F. 2d at

869; Frontiero v. Richardson, 411 U.S. 677 (1973), and

The Irrebuttable Presumption Doctrine in the Supreme

Court, 87 Harv. L. Rev. 1534 (1974). However, as

Massachusetts Bd. of Retirement v. Murgia instructs,

427 US. at 313-14, age is not a suspect classification in

the context of mandatory retirement cases. Therefore,

the irrebuttable presumption doctrine does not apply to

mandatory retirement cases.

2. Due process protects

only liberty and proper-

ty interests.

15

Procedural due process does not protect against all

losses. It is confined to property and liberty interests.

More specifically, the interests in property and liberty

which due process protects relate to a right or status

“previously recognized by state law ... [which has

become] distinctly altered or extinguished.” Paul v.

Davis, 424 U.S. 693, 711 (1976).

3. Appellant has raised no

substantial federal ques-

tion as to liberty in-

terests.

As articulated above, the appellee has put forth the

state’s legitimate interests in requiring mandatory

retirement at age 65 for classified civil servants. No

such articulated interest involves a presumption of

incompetency on the part of any individual classified

civil servant. In Palmer, the court stated:

Unrelated to any notion of physical or mental

fitness, a state might prescribe mandatory

retirement for teachers in order to open up

employment opportunities for young teachers

— particularly in the last decade when supply

has outpaced demand, or to open up more

places for minorities, or to bring young people

with fresh ideas and techniques in contact

with school children, or to assure predictability

and ease in establishing and administering

pension plans. A compulsory retirement

system is rationally related to the fulfillment

of any or all of these legitimate state objec-

tives.

Palmer v. Ticcione, 576 F. 2d at 462. The case at bar

presents substantially similar rational bases for the

statutes in question. Such bases are unrelated to any

notion of appellant’s physical or mental fitness and

16

are thus unrelated to any notion of incompetency with

respect to the appellant.

4. Appellant has raised no

substantial federal ques-

tion as to property in-

terests.

“[P]ublic employment is not a_ constitutional

right.” Personnel Adm’r of Massachusetts v. Feeney,

— US. __, 99 S.Ct. 2282, 2293 (1979). No fundamen-

tal right or suspect classification is involved.

Massachusetts Bd. of Retirement v. Murgia, 427 US.

at 313. A claim of entitlement to a job, in order to

enjoy due process protections, “must be decided by

reference to state law.” Bishop v. Wood, 426 U.S. 341,

344 (1976).

The argument that mandatory retirement laws

abridge a right to engage in a common occupation was

expressly rejected in Armstrong v. Howell, 371 F.

Supp. 48, 54 (D. Neb. 1974), and in Gossman v. State

Employees Retirement System, 177 Neb. 326, 129 N.W.

2d 97 (1964). Both cases involved civil service

employes; the former involved county employes, and

the latter involved state employes. In Gossman, Chief

Justice White stated:

The State, in this case, is in the position of an

employer. It is in the position of setting up the

terms and conditions under which the State

will contract for employment and under which

an employee may or may not, according to his

wishes, accept the proffered conditions. All

that is required is that the classifications and

the requirements thereunder must have some

reasonable relation to the purposes and objec-

tives of the Act. The purposes and objectives of

the Act in this situation are to set up

conditions and requirements of employment

17

which the employee is free to accept or reject.

In evaluating this situation, we take notice of

the fact that the State is an employer on the

labor market and must meet, and is subjected

to, the competitive influences and pressures

that are present under modern economic

conditions. In the light of this situation, it is

reasonable for it to hold out and to set up in-

ducements to employees in a retirement act....

The Legislature has a right to define and

determine what conditions or objectives are

reasonable in this area. It is clear that State

employment is not a vested right, but it is

extended at the will of the State, and the State

may reasonably make a mandatory retirement

system as a condition of such employment,

and if this be so, it follows that the State has a

right to impose such conditions are

economically and practicably sound.

Gossman v. State Employees Retirement System, 129

N.W. 2d at 103.

In Board of Regents v. Roth, 408 U.S. 564, 576

(1972), this Court stated that “(t]he Fourteenth

Amendment’s procedural protection of property is a

safeguard of the security of interests that a person has

already acquired in specific benefits.” The Court

further stated:

To have a property interest in a benefit, a

person clearly must have more than an

abstract need or desire for it. He must have

more than a unilateral expectation of it. He

must, instead, have a legitimate claim of

entitlement to it. ...

18

Property interests, of course, are not

created by the Constitution. Rather, they are

created and their dimensions are defined by

existing rules or understandings that stem

from an independent source such as state law

— rules or understandings that secure certain

benefits and that support claims of entitlement

to those benefits.

Board of Regents v. Roth, 408 U.S. at 577. As

articulated above, state employment is not a vested

right, but is subject to the authority of the state. The

same rationale applies to an alleged property interest.

Thus, it is clear the appellant possessed no liberty or

property interests in need of due process procedural

safeguards. Appellant had no vested liberty or proper-

ty interest in his civil service employment. Existing

statutes and administrative rules provided no objective

bilateral expectation of continued employment past

age 65.

5. In any event, the state’s

interests prevail.

Assuming arguendo that appellant’s compulsory

retirement affected his liberty or property rights, the

state’s legitimate interests in mandatory retirement

override same. The plaintiff in Johnson v. Lefkowitz,

566 F. 2d at 869, maintained that he was deprived of

his tenured civil service position without due process.

He claimed that he was entitled to a hearing either at

the time of his mandatory retirement or at the time his

final extension was refused. The appellant maintains a

substantially similar position in the case at bar. See

Appellant’s Jurisdictional Statement, p. 17. The second

circuit in Johnson v. Lefkowitz expressly rejected this

position. The court stated:

19

Appellee suggests that Johnson’s due process

argument is wholly misguided since his

termination affected neither a protected proper-

ty or liberty interest. We need not, however,

reach the state’s argument. Assuming arguen-

do that Johnson’s dismissal affected his

property or liberty, a determination of

constitutionally mandated procedures requires

that the interests of the individual in being

afforded such safeguards be balanced against

the burden to the state in conducting them. It

is clear to us that the administrative cost to

the state of providing each retiree with a

hearing would be enormous, and by far

outweigh the hardship to the individual.

Johnson v. Lefkowitz, 566 F. 2d at 869. (Emphasis

added).

The same result was reached by the seventh circuit

in deciding Trafelet v. Thompson, 595 F. 2d 623. That

case involved a constitutional challenge to mandatory

retirement laws applicable to judges. Specifically, the

court stated: “[T]he existence of other means for

evaluating a judge’s performance ... does not render

mandatory retirement at age 70 unconstitutional.”

Trafelet v. Thompson, 595 F. 2d at 628.

The second circuit also addressed the same issue in

Palmer v. Ticcione, 575 F. 2d 459. That case involved

the New York Education Law, which provided for

compulsory retirement at the empioyer’s discretion.

The record in Palmer gave no indication whether the

school board adopted a mandatory or a discretionary

plan. However, in addressing the plaintiff's claim that

a termination hearing was required, the court stated:

[W]e can see no purpose for a hearing if

appellant was retired under an across-the-

board, mandatory retirement system. And even

20

if a discretionary system was employed, we

would be constrained to follow Johnson, supra,

and deny this claim. In Johnson, we held that

a hearing is not required because the benefits

of holding such a hearing are outweighed by

the burdens imposed upon the state by

requiring a hearing in every case. 566 F. 2d at

869.

Palmer v. Ticcione, 575 F. 2d at 464.

CONCLUSION

Accordingly, the appellee moves this court to

affirm the decision below on the ground that it is so

manifest that the questions on which the decision of

the cause depends are so unsubstantial as not to need

further argument.

BRONSON C. LA FOLLETTE

Attorney General

CHARLES D. HOORNSTRA

Assistant Attorney General

GEORGE B. SCHWAHN

Assistant Attorney General

Attorneys for Appellee

P.O. Address:

114 East, State Capitol

Madison, Wisconsin 53702

(608) 266-8690