Amicus Curiae Brief — Gregory v. Ashcroft

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P<PTeEMe Court US

F J LE Nn

vw, JAN 44 1909

No. 90-50 JOSE .

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

ELLIS GREGORY, JR. and

ANTHONY P. NUGENT, JR., JUDGES,

. Petitioners,

JOHN D. ASHCROFT, GOVERNOR OF THE STATE OF MISSOURI,

Pe Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF AMICUS CURIAE OF

AMERICAN ASSOCIATION OF RETIRED PERSONS

IN SUPPORT OF PETITIONERS

STEVEN S. ZALEZNICK

CATHY VENTRELL-MONSEES *

AMERICAN ASSOCIATION OF

RETIRED PERSONS

1909 K Street, N.W.

Washington, D.C. 20048

(202) 662-4957

Attorneys for Amicus Curiae

American Association of

Retired Persons

* Counsel of Record

_———

WILSON - Epas Printina Co., INc. - 7389-0096 - WaSHIrIGTON, D.C. 20001

QUESTIONS PRESENTED

(1) Whether the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. § 621 ef seq., excludes appointed

state judges from its coverage as “appointees on the pol-

icymaking level.” 29 U.S.C. § 631/(f).

(2) Whether a mandatory retirement age for elected

and appointed judges violates the Equal Protection Clause

of the Fourteenth Amendment.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED |...00022 20...

TABLE OF AUTHORITIES 0.

INTEREST OF AMICUS CURIAE .... a

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT |. nn...

ARGUMENT. ........................00-20-+. eidiceresgutbseliaidinesieKinsinitées

I. APPOINTED STATE COURT JUDGES ARE

NOT “APPOINTEES ON THE POLICY-

MAKING LEVEL UNDER THE ADEA.”

A. Judges Are Not Appointees Within The

Meaning Of ADEA Section 630(f) Since

They Do Not Work For An Elected Official.

B. Judges Are Not Policymakers Within The

Meaning Of ADEA Section 630(f)

Il. MANDATORY RETIREMENT AT AGE 70

VIOLATES THE EQUAL PROTECTION

ee _ccassnensensennassasencam

CONCLUSION

(iil)

TABLE OF AUTHORITIES

CASES

Bader Realty & Investment Co. v. St. Louis Hous-

ing Authority, 358 Mo. 747 (1949)...

Bowsher v. Synar, 478 U.S. 714 (1986)

Brinkmann v. Common School Dist. No. 27 of

Gasconade County, 238 S.W.2d 1 (Mo. Ct. App.

1951), aff'd 255 S.W.2d 770 (Mo. 1953) —...........

Buckley v. Valeo, 424 U.S. 1 (1976) 00... -

City of Cleburne v. Cleburne Living Center, 473

U.S. 432 (1985)

City of Fenton v. Twin City Fire Insurance Co.,

780 S.W.2d 97 (Mo. App. 1989) .......................

EEOC »v. First Catholic Slovak Ladies Aseoc., 694

F.2d 1068 (6th Cir. 1982), cert. denied, 464

U.S. 819 (1983) . 7

EEOC v. Massachusetts, 858 F.2d 52. (st Cir.

I areas aie de tila Sea

Page

14, 15, 16, 17, 19, 20

10,11

EEOC v. Reno, 758 F.2d 581 (11th Cir. 1985) 5, 8,11

EEOC v. Vermont, 904 F.2d 794 (2d Cir. 1990) 2, 7, 10

EEOC v. Wyoming, 460 U.S. 226 (1983)

Ellsworth Freight Lines, Inc. v. State Tax Com-

mission of Missouri, 651 S.W.2d 130 (Mo.

1983), cert. denied, 465 U.S. 1001 (1984)...

Flast v. Cohen, 392 U.S. 83 (1968)...

Gilmer v. Interstate Johnson Lane Corp., No. 90-

18, cert. granted, 111 8. Ct. 41 (1990) 0...

Gregory v. Ashcroft, 898 F.2d 598 (8th Cir.

1990) Ine : 13,

Hanna v. Plumer, 380 US. 460 (1965) .

Hoffman-LaRoche, Inc. v. Sperling, 110 S. Ct. 482

(1989) OOP Ranke

In Re Pate, 107 S.W.2d 157 (Mo. Ct. App. 1937) .

International Telephone & Telegraph Corp. v.

Smith, 687 S.W.2d 194 (Mo. 1985) .

Japan Whaling Association v. American Cetacean

Society, 478 U.S. 221 (1986)

Lorillard v. Pons, 434 U.S. 575 (1978)

Massachusetts Board of Retirement v. Murgia,

427 U.S. 307 (1976) 2, 14,

Mistretta v. United States, 488 U.S. 361 (1989)

15, 16

16, 20

TABLE OF AUTHORITIES—Continued

Morrison v. Olson, 487 U.S. 654 (1988)

Muskrat v. United States, 219 U.S. 346 (1911)

Northern Pipeline Construction Co. v. Marathon

Pipe Line Co., 458 U.S. 50 (1982). |

O'Neil v. Baine, 568 S.W.2d 761 (Mo. 1978)

Public Employees Retirement System v. Betts, 109

S. Ct. 2854 (1989) BN eR I ete REN a

Rogers v. Exxon Engineering, 404 F. Supp. 324

(D.N.J. 1976) ................

State ex rel. Dahl v. Lange, 661 S.W.2d 7 (Mo.

1983) im

State ex rel. Otto v. Kenees City, 310 Mo. 542

eR lan ee ls MP en ere Rae RED ae

State v. One ‘Jack and Jill’ Pinball Machine, 224

S.W.2d 854 (Mo. Ct. App. 1949)... shen MA

Trans World Airlines, Inc. v. Thurston, 469 U.S.

111 (1985)... Ros ERE ee

United Air Lines, Inc. v. McMann, 434 U.S. 192

Ee eae ee ie wes

United States Parole Commission v. Geraghty,

445 U.S. 388 (1980) .........-.

Wasinger v. Labor and Industrial Relations Com-

mission, 701 S.W.2d 793 (Mo. Ct. App. 1985)

Western Air Lines v. Crisweli, 472 US. 400

(1985)

STATUTES AND REGULATIONS

Age Discrimination in Employment Act, “ADEA”,

29 U.S.C. 621 et seq...

29 U.S.C. § 623 (i).............00. ee... .

29 U.S.C. § 680(b)......................... eR a .

I rs I

29 U.S.C. § 631 (c)

29 U.S.C. § 631(c) (1).

29 U.S.C. § 631(d)

Mo. Const. art. V, § 15

Mo. Const. art. V, § 24

Mo. Const. art. V, § 26

Mo. Const. art. V, § 26(3) _...

Page

11,12

11-12

passim

3, 13

TABLE OF AUTHORITIES—Continued

Mo. Rev. Stat. § 476.683 (1988).

Pub. L. No. 92-261, 86 Stat. 103 (1972)

Pub. L. No. 98-459, 98 Stat. 1767 (1984)

Tax Reform Act of 1986, 26 U.S.C. § 401 (a) (9)

RS Ne DAO RAR STE nO SA ne a a ae

Title VII of the Civil Rights Act of 1964 (Title

VII), 42 U.S.C. § 2000e(f) 0...

U.S. Const. omand, TREE ea

LEGISLATIVE HISTORY

118 Cong. Rec. 4096 (1972)

118 Cong. Rec. 4097 (1972)... AE ches ee a

118 Cong. Rec. 4483 (1972)... So tay nt

118 Cong. Rec. 4492-93 (1972)... | 8,

118 Cong. Rec. 15,895 (1972) 0.000

132 Cong. Rec. 32,658 (1986) _

H.R. Conf. Rep. No. &99, 92d Cong. be 24 Sess.

EET Se RAS ae STS es SR eS

( 1977). Ro Par AER LE MER SA eS COT

H.R. Rep. No. 756, 99th Cong., 2d Sess. (1986)...

Retirement Age Policies, Part I: Hearings Be-

fore the House Select Comm. on Aging, 95th

Cong., Ist Sess. (1977) . |

S. Conf. Rep. No. 681, 92d Cong., 24 Sess. (1972).

The Removal of the Age Ceiling Cap Under the

Age Discrimination in Employment Act: Joint

Hearing Before the Subcomm. on Employment

Opportunities of the House Comm. on Educa-

tion and Labor end the Subcomm. on Health

and Long-Term Care of the House Select Comm.

on Aging, 99th Cong., 2d Sess. (1986)

Working Americans: Equality At Any Age, Staff

Report of the Senate Special Comm. on Aging,

99th Cong., 2d Sess. (1986) -

MISCELLANEOUS

Age Discrimination in Employment, 50 N.Y.U.L.

BT I i ee Oe koe a

7-8

20-21

vii

TABLE OF AUTHORITIES—Continued

Arbuckle, Gold, & Andres, Cognitive Functioning

of Older People in Relation to Social and Per-

sonality Variables, 1 Psych. and Aging 55

(1986) .................

Constitutional Attacks on s Mendator: y Retirement:

A Reconsideration, 23 UCLA L. Rev. 549

I a a

Equal Employment Opportunity Commission

Opinion Letter No. 7 (April 7, 1987) ..............

McDougal, Lasswell & Chen, The Human Rights

of the Aged: An Application of the General

Norm of Nondiscrimination, 29 U. Fla. L. Rev.

639 (1976) .............. sc a

McEvoy & Cascio, Cumulative Evidence of the

Relationship Between Employee Age and Job

Performance, 74 J. of Appl. Psych. 11 (1989)

O'Neil v. Baine: Application of Middle-Level

Serutiny to Old Age Classifications, 127 U. Pa.

L. Rev. 798 (1979)

S. Ervin and R. Clark, Role of the Supreme Court:

Policymaker or Adjudicator (1970)

Schaie, “The Seattle Longitudinal Study: A 21-

year Exploration of Psychometric Intelligence

in Adulthood” in Longitudinal Studies of Adult

Psychological Development (K.W. Schaie ed.

1983) Ga acane AA '

Somers, Social, Economic, and Health Aspects of

Mandatory Retirement, 6 J. of Health, Politics,

Policy & Law 542 (1981) ................0000000 0

Staudinger, Cornelius & Baltes, The Aging of

Intelligence: Potential and Limits, 503 The

Annals 43 (1989)

Work and Workers for the 218¢ Century 80)

(1987)

Wadman & Avolio, A Meta- Analysis of Age Differ-

ences in Job Performance, 71 J. of Appl. Psych.

33 (1986)

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1900

No. 90-50

ELLIS GREGORY, JR. and

ANTHONY P. NUGENT, JR., JUDGES,

Petitions 'S,

JOHN D. Asiicrorr, GOVERNOR OF THE STATE OF MISSOURI,

Respond yt,

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF AMICUS CURIAE OF

AMERICAN ASSOCIATION OF RETIRED PERSONS

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The American Association of Retired Persons (AARP)

is a nonprofit organization of approximately thirty-three

million persons age 50 and older. More than eleven mil-

lion AARP members are employed individuals, most of

whom are protected by the Age Discrimination in Em-

ployment Act, “ADEA,” 29 U.S.C. § 621 ef seq.

AARP seeks to insure that older persons are judged on

their avility, not age. To this end, AARP created a

Worker Equity Initiative in 1985 to study and address

issues affecting the employment of older workers. AARP

has developed educational and advocacy programs to en-

courage and promote the employment of older workers.

As part of its advocacy efforts, AARP has filed numer-

ous amicus curiae briefs in the United States Supreme

Court and the United States Courts of Appeals regarding

the proper interpretation and application of the ADEA

to insure that the rights of older workers are fully pro-

tected.'

Congress enacted the ADEA to protect individuals from

arbitrary age discrimination. The most arbitrary form

of discrimination is mandatory retirement. Studies con-

sistently demonstrate that chronological age is a poor

determinant of ability and that capability varies greatly

among individuals. The ADEA’s prohibition of manda-

tory retirement represents a national commitment to the

principle that each individual—regardless of age—has the

right to remain a productive member of society and to be

judged on his or her individual abilities. For these rea-

sons, AARP opposes mandatory retirement policies such

as Missouri’s requirement that its judges retire upon

reaching age 70.

AARP submits this brief amicus curiae, with the con-

sent of the parties,’ urging the Court to reverse the de-

cision of the Eighth Circuit below. -

STATEMENT OF THE CASE

AARP adopts the Petitioners’ statement.

' See, e.g. Gimer v. Interstate Johnson Lane Corp... No. 90-18,

cert. granted, 111 S. Ct. 41 (1990); Hoffman-LaRoche, Ine. v.

Sperling, 110 8. Ct. 482 (1989); Pwhlie Emplowees Retirement Syus-

tem wv. Betts, 109 S. Ct. 2854 (1989): United Ay Lines, Ine. v.

MeMaun, AA US. 192 (1977): Massachusetts Board of Retire-

ment vo Murgia, 427 U.S. 307 (1976). AARP also filed a brief

anieus curiae arguing against the mandatory retirement of Ver-

mont judges in FEOC v¢. Vermont, 904 F.2d 794 (2d Cir. 1990).

* The written consents of the parties have been filed with the

Clerk of the Court pursuant to Supreme Court Rule 37.3

3 '

SUMMARY OF ARGUMENT

Petitioners challenge the legality of Missouri’s manda-

tory retirement provision for the majority of its state

court judges. Mo. Const. art. V, § 26. Petitioners and

AARP submit that compelling judges to retire at age 70

solely because of age viplates the ADEA and the Equal

Protection Clause. e

The ADEA broadly protects state and local govern-

ment emplovees from discriminatory practices. Section

630(f) of the ADEA excludes elected officials, and their

personal staffs, their policvmaking appointees, and their

immediate advisers from coverage under the ADEA. Un-

less appointed state court judges fall within one of the

categories expressly excluded by Section 630(f), they

cannot be mandatorily retired.

The Eighth Circuit erroneously held that appointed

judges are “appointees on the policvmaking level” within

the meaning of Section 630(f'. This broad construction

of Section 630(f) is unsupported by the statutory lan-

guage and purpose of the ADEA and is contrary to per-

tinent legislative history of the identical exclusion from

coverage in Title VII of the Civil Rights Act of 1964.

42 U.S.C. § 2000e(f'. The framework of the exclusions

in Section 630‘f) reveals that Congress intended to iden-

tify two related groups—elected officials and a_ select

group of their appointees. The purpose of the exclusions

was to shield elected state officials from the intrusion of

a federal statute in the selection of individuals with

whom the officials would work closely.

Nothing in the language, the structure, or the legisla-

tive history of the exclusions from the definition of em-

plovee suggests that Congress intended to exclude ap-

pointed judges from the reach of the ADEA. Judges do

not fall within the type of “appointees” identified in

Section 630(f)}, as they do not work closely with or for

their appointing authorities. Indeed, judges must main-

tain a separate and independent relationship from the

executive branch.

Nor do judges make policy—the judge’s role is to re-

solve a concrete case or controversy, not to issue an

advisory opinion. The role of a judge as part of the

separate and independent judiciary branch of govern-

men simply does not fit within the meaning or purpose

of an elected official’s “appointee on the policymaking

level” as defined by Section 630/(f) of the ADEA.

Compelling both appointed and elected judges to retire

at age 70 also violates the Equal Protection Clause of

the Fourteenth Amendment. The State has singled out

an arbitrary criterion, age 70, that denies older persons

the right to continued employment. The purported rea-

sons for the mandatory provision are as arbitrary as

the selection of age 70 itself. These reasons rely on out-

dated and unfounded stereotypes about age and ability.

Such stereotypes should no longer withstand constitu-

tional scrutiny.

Mandatory retirement has been abolished for most

employees under the ADEA, as empirical evidence and

public policy establish that age is simply irrelevant to

ability... Missouri’s continued use of age to terminate

healthy and competent jurists has a devastating effect on

those individuals and injures society as a whole. As such,

it lacks a rational basis and violates the Equal Protee-

tion Clause.

*The ADEA permits the mandatory retirement of law enforce-

ment officers, 29 U.S.C. 2 62301). and of tenured f Itty at ave 70,

29 TSC. S Ghtid). These temporary exceptions expire on Decem

ber 31, 1993. The Act also permits the mandatory retirement of

certain bons fide or hich polievmaking exeentives eligible for a:

Immediate pension of 344.000, 20 USC. 2 6n1i«

ARGUMENT

I. APPOINTED STATE COURT JUDGES ARE NOT

“APPOINTEES ON THE POLICYMAKING LEVEL

UNDER THE ADEA.”

The ADEA protects “employees” from arbitrary age

discrimination in employment. The Act defines “em-

ployee” to mean “an individual employed by an em-

ployer... .” 29 U.S.C. §$ 630(f1. There is no dispute

that Missouri is an employer subject to the proscriptions

of the ADEA. 29 U.S.C. §630'b).' The only issue is

whether appointed state court judges are employees with-

in the definition established by 29 U.S.C. § 630(f12

The ADEA’s coverage of appointed judges may be as-

certained by analyzing the statutory language of the Act,

pertinent legislative history, and the particular circum-

stances of the instant case.” See Trans World Airlines,

Inc. v. Thurston, 469 U.S. 111 (1985). The exceptions

to the ADEA’s protections are to be narrowly construed

and the class of individuals who are entitled to the law’s

‘Appendix to Petition for Writ of Certiorari, A 20.

* Section 11(f), 29 U.S.C. § 630(f) reads, in relevant part:

The term “employee” means an individual emploved by am

employer except that the term “emplovee” shall not include an:

person elected to public office in any State or political subdivi-

sion of any State by the qualified voters thereof, or any person

chosen by such officer to be on such officer’s personal staff, or

an appointee on the policvmaking level or an immediate ad-

viser with respect to the exercise of the constitutional or legal

powers of the office. The exemption set forth in the preceding

’ rare

service

sentence shall not include emplovees subject to the civi

laws of a State vovernment rovernmental agency, or political

subdivision

. Th ‘ est! I é f whe thes ppommted state court iudee fal] wit! 1?

the exception is one of federal law, rather than state law. State law

lv relevant insofar a t deserihes the individual's Puosttion and

eCCOM PANY ig dlutie i hoe 4 Levy ,, 75s F.2d asl, DS { llth Cir.

1985).

protections as “employees” must be defined broadly.

EEOC v. First Catholic Slovak Ladies Assoc., 694 F.2d

1068, 1070 (6th Cir. 1982), cert. denied, 464 U.S. 819

(1983). Because arbitrary age limits are repugnant to

the letter and spirit of the ADEA,’ the mandate to nar-

rowly interpret exceptions to the Act’s protections is

especially significant when, as here, an individual is being

mandatorily retired. See’Western Air Lines, Ine. v. Cris-

well, 472 U.S. 400, 410 (1985).

The broad definition of “employee” under the ADEA

is explicitly limited by exceptions excluding certain per-

sons in state and local governments from the protections

of the Act. The exceptions identify two groups: elected

officials and those individuals who work for the elected

officials. For the latter group, Congress specifically de-

scribed the type of employees selected by elected officials

whom it intended to exclude from the reach of the Act:

(1) any person chosen by such officer to be on such

officer’s personal staff, or

(2) an appointee on the policymaking level, or

(3) an immediate adviser with respect to the exer-

cise of the constitutional or legal powers of the

office.

29 U.S.C. § 630(f).

The plain meaning and purpose of the exclusionary

provisions in Section 630(f+' demonstrate that Congress

intended “to exclude state and local elected officials and

certain non-civil service appointed officials.” HREOC +.

Wyoming, 460 US. 226, 233 n. 5 11983) (emphasis

added }.

‘

A. Judges Are Not Appointees Within The Meaning Of

ADEA Section 630(f) Since They Do Not Work For

An Elected Official.

The meaning of “appointee on the policymaking level”

must be understood within the context of the categories

described within the exception. The categories of indi-

viduals listed in the exclusions share a common thread

—their relationship to an elected official. These individ-

uals typically “work closely with and are accountable to

the official who appointed them.” EEOC v. Ve mont, 904

F.2d 794, 800 (2d Cir. 1990). The framework and con-

text of the exclusions make this relationship essential to

determining the scope and meaning of “appointee on the

policymaking level.”

The placement of the category of policymaking ap-

pointees between the categories of personal staff and im-

mediate advisers strongly suggests that the exclusion of

policymaking appointees is limited to individuals who

have a relationship with or are accountable to the elected

official. The first and third categories of employees iden-

tified in Section 630(f) clearly describe individuals who

work closely with the elected official. The placement of

the appointee category within this framework indicates

Congress’ understanding that the three categories shared

common characteristics. Otherwise, Congress would not

have structured the exclusions in such an interrelated

manner.

The legislative history of the identical provision in

Title VII of the Civil Rights Act of 1964 | Title VII),

42 U.S.C. £ 2000e( f+}, supports the interpretation of the

ADEA Section 630(f) as limited to appointees account-

able to their elected official.” Congress enacted the identi-

“Senator Bentsen, the chief sponsor of the ADEA amendment

to include state and Jocal government emplovees, pointed to the

parallel amendments to Tithe VII in 1972 as support for amendi:

the ADEA. 118 Corg. Re 15.805 1972 “| believe t)

principles underlying these provisions in the EEOC bill | Tith VII

eal exception for appointees under Tithe VIT when it ex-

panded the definition of emplover to include state and

local governments.” The exception for eleeted officials

arose because of congressional concern that by expanding

the definition of employer in the bill, the amendment

would be “broad enough to cover lemployees such as}

Governors of States, State Supreme Court justices, state

legislators, and so forth.” 118 Cong. Ree. 4096 (1972)

(remarks of Sen, Ervin’,

The evolution of the eleeted officials’ exception and the

three related categories reveals a clear purpose for the

provision to shield an eleeted official and those individ-

uals “who are in a elose personal relationship and an im-

mediate relationship with him” from the serutiny of the

federal courts. 118 Cong. Ree, 4492-93 (1972) (remarks

of Sen. Williams'. Senator Ervin’s initial amendment to

the definition of emplovee excluded any elected officials

and those who “advise him in respeet to the exereise of

the constitutional or legal powers of his office.” 118

Cong. Ree. 4483 61972) tremarks of Sen. Ervint. Sen-

ator Williams also proposed to exclude the personal staff

of the eleeted official and the language Wiis changed to

add “any person chosen by such officer to be a personal

assistant.” 11S Cong. Ree, 4492-93 (1972). The Senate

adopted this language; it hecume the first and third eate-

gories of the exception in the definition of employee, 1?

Lus.c, s 2odderfe,

eodire tl, appleable to the Age Diserimination inp Rimpleyvment

Act / remarks of Sen. Bentsen The leyislitive histerv of

ne identical Man age in Tithe VII is therefore relevant te the

pretation of such language in the ADEA. See Lertlard 3

/ 14s US. 575. 584 (197R): RR Biewe, TAS Pld Sal, ost

r] thi © if | fo.) Tie only difference between the ADEA ane

V1 fo employee results Tram a 10S) amendment

PRA cornp United States citizens employed overseu

hae “- $50, Os Stat. 1767 (1984

L.. No. 92-261, 86 Stat. 108 (1972

Senator Javits repeatedly sought clarifieation and nar-

rowing of the “adviser” phrase proposed by Senator

Krvin. He expressed his concern that the phrace as

Written would encompass many employees who were not

high level advisers:

I realize that the Senator [Ervin] is seekine to eon-

fine it te the higher officials ino a policymaking or

poliey advising capacity,

118 Cong. Ree. 4097 (1972) (remarks of Sen. Javit-

This exchange precipitated the creation by the conference

committee of the “middle category of persons exeluded

from the definition of employees, namely “appointees on

the polieymaking level.” HLR. Conf. Rep. No. 899, G2d

Cong., 2d Sess. 2 (1972),

The addition of language identifying a select group of

appointees on a policymaking level completed the cate-

gories of persons within the exelusion. This legislative

history reveals a clear picture of whom Congres. in-

tended to exelude from coverage by the phrase “appoin-

tees on the policymaking level”:

those persons appointed by such eleeted official. a-

wivisers or to polieymaking positions at the highes*

levels of the departm nts or agencies of state or joes

rovernments, sach as cabinet officers,

(1972) ‘joint statement of managers): S. Conf. Rep.

No, 681, 92d Cong., 2d Sess. 2. 15 (1972+ ‘joint ~tate-

ment of managers!) re privte daw part m 1972 US. Code

Cong. & Admin. News 2179, 2180. Congress also ad-

monished that “|t{his exemption, hould be construed nar-

rowly.” Jd,

H.R. Conf. Rep. No. 809, 92d Cong... 2d Sess. 2.015

While Congress was awaré (hat judges could he ecy-

ered employees under Tithe VII, the legislative histor

reflects Congress’ intent to restrict the <e« pe of the ap-

pointees’ provision with ne indication that appeinte

judges would fall within the exception. To the con

the deliberations on the exclusions of certain state and

local government employees focused on the appointed

staff, policymakers and advisers of elected officials in the

executive branch. Nothing in the language or legislative

history suggests that Congress intended to exclude every

employee who was an elected official or to exclude ap-

pointed state judges.

An EEOC Opinion Letter concerning the applicability

of the ADEA to state and local judges confirms the

meaning and limited purpose of the excluded categories

and is consistent with congressional intent. Equal Em-

ployment Opportunity Commission Opinion Letter No. 7

(‘April 7, 1987). The Opinion Letter describes several

attributes of “appointees on the policymaking level” that

are absent from the functions of an appointed state court

judge. In EEOC’s view," Section 630(f) only applies to

appointees who:

a! have a “close personal and immediate relationship

between the elected official and the appointee”;

b! act as “first-line advisers upon whom the elected

official directly relies for advice. See 118 Cong.

Ree. 4492-93 (1972) ‘remarks of Senator Wil-

liams and Senator Ervin).”

c! “implement||] the day to day political pclicies of

the elected executive or legislative body that ap-

points them.”

Id,

An analysis of state judges’ duties demonstrates that

they do not fall within the exception for “appointees

on the policymaking level” since they are not the type

of executive “appointees” contemplated by 29 U.S.C.

$630:(f'. While state judges may be appointed by an

elected official, any connection to the elected official es-

sentially ceases after their appointment. Judges do not

“See also EEOC ¢. Vermont, 904 F.2d 794 (2d Cir. 1990):

ERtiW” ¢. Massachusetts, 858 F.2d 52 (lst Cir. 1988).

serve at the pleasure of the appointing authority. Sce

EEOC v. Reno, 758 F.2d 581, 584 (11th Cir. 1985).

Judges are not advisers to the elected official. On the

contrary, the role of a judge must be independent from

the legislator. See EEOC v. Massachusetts, 858 F.2d 52,

56 (1st Cir. 1988).

B. Judges Are Not Policymakers Within The Meaning

Of ADEA Section 630(f).

Even if arguendo, judges are included within the types

of appointees contemplated by 29 U.S.C. § 630/f), they

are not “policymakers” within the meaning of the

ADEA."' The term “policy” within Section 630/f)

logically connotes the policies of the elected official.

EEOC Op. Letter No. 7.

Historically, the judiciary has been independent of and

separate from both the legislative and the executive. See

Bowsher v. Synar, 478 U.S. 714, 721-23 (1986): Musk-

rat v. United States, 219 U.S. 346, 355 (1911). This

Court and the Missouri state courts have repeatedly re-

affirmed the importance of maintaining the separation of

powers. '*

The separation of powers safeguards the impartiality

of the adjudication process itself. Northern Pipeline

"In addition to the appointée on the poliewmaking level, the

ADEA contains the term “policymaker” in an exeeption permitting

the mandatory retirement of an emplovee in a bona fide executive

or “high policymaking position” who is eligible for an immediate

pension of 344,000. 29 U.S.C. 2 651(e)(1). Respondent did not

raise this exception below as it is inapplicable to the facts here.

' Morrison v. Olson, A837 U.S. 654 (1988): Pucklew ¢. Vals “, 121

US. 1, 120-21 (1976) (per curiam); State ex rel. Otte «. Kansas

City, 310 Mo, 542, 572 (Mo. 1925) (The purpose of keeping the

different branches separate had its origin in the framers’ interest

in preserving the liberty of the people.): Jv Re Pate, 107 SW 2d

157 «Mo. Ct. App. 1987) «The three governmental branches are

each given certain inherent powers and each must be kept separate

and operate in its own particular field).

Construction Co. v. Marathon Pipe Line Co., 458 U.S.

50, 58 (1982). The Framers sought to maintain the in-

dependence of the judiciary by limiting the exercise of

judicial power to “cases” or “controversies.” See Morri-

son v. Olson, 487 U.S. 654 (1988); United States Parole

Commission v. Geraghty, 445 U.S. 388, 395 (1980).

Courts cannot entertain non-justiciable matters, nor are

they permitted to issue advisory opinions. Flast v. Cohen,

392 U.S. 83, 94-95 (1968). Missouri courts may not

render advisory opinions. IJnternational Telephone &

Telegraph Corp. v. Smith, 687 S.W.2d 194, 195 (Mo.

1985) (per curiam.”

In short. judges do not make policy.'' They exercise

their power almost exclusively by ruling on cases. In

doing so, they apply the laws written and enacted by the

legislatures."" A court may weigh policy factors and

18 State ex vel. Dahl v. Lange, 661 S.W.2d 7 (Mo. 1983); Ellsworth

Fre ight Lines, Inc. v. State Tar Commu ission of Missouri, 651

S.W.2d 120 (Moe. 1983), cert. denied, 465 US. 1001 (1984); City

of Fenton vo Twin City Fire Insurance Co.. 7830 S.W.2d 97 (Mo.

Ct. App. 1989): Wasinger +. Labor and Industries Relations Con-

mission, TOL S.W.2d 795, 794 (Mo. Ct. App. J985).

"4 Bader Realty & Investment Co. v. St. Louis Housing A wiheority,

358 Mo. 747, 754 (1949) (Court determines question of power, not

policy): Brinkmann ¢. Common School Dist. No. 27 of Gasconad:

County, 228 S.W.2d 1, 6 «Mo. Ct. App. 1951), aff'd 255 SW.2d 770

(Mo. 1953) (It is the plain duty of courts to apply the law as

written by the legislature and leave to that tribunal the matter of

determining questions of legislative policy).

Even in those instances when, in the course of adjudicating

a case, the courts must interpret a silent or ambiguous statute,

they must look to the legislative history for congressional intent

or defer to the executive branch's construction of the <tatute.

Jeven Wheeling Association «. American Cetaccan Soeietu, V7 US.

271, 225-34 (1986). In these rare instances when courts engage tn

nonadjudicaters actiyities such as rulemaking. thev must rely on

Congress te confer specific rilemaking autherity on them. Se:

Mistretta Dnited States, (88 US. 361, 386-87 (1980): Hanne ¢

Plawer, 230 US. 460 (1965).

render decisions with policy implications, but the judge's

role is limited to discerning the policies set by the execu-

tive or legislature, not to develop or make policy him-

self." While deciding novel disputes may create law,

making policy is quite different.

The members of Congress who drafted and enacted the

appointees’ exception were clearly cognizant of the role

of the judiciary in our system of government.’ Accord-

ingly, to assume that Congress meant to include judges

within the policymaking exception of the ADEA would

mean that, without explanation, Congress enacted a law

Which is inconsistent with the long-established independ-

ent role of the judiciary in the American government.

The court below further erred in holding that Peti-

tioners and apparently all state judges were policymakers

hased on the supervisory authority of some state judges

to develop rules of professional conduct or policies for

the resolution of disputes within the judiciary. Gregory

vr. Ashcroft, 898 F.2d 598, 602 (8th Cir. 19901." The

clear purpose of the appointee exception was to limit it

‘o high level policymakers. Judge Gregory is an associate

circuit judge. J.A. 3. Judge Gregory’s supervisory au-

thority is limited to his personal staff of one, and asso-

™ State rv. One ‘Jack and Jill’ Pinhall Machine, 224 SW 2d 854

(Mo. Ct. App. 1949) (The policy of legislative enactments is not

for courts but for the legislature to establish }.

' Senator Ervin, the lead author of the appointees’ exceptions in

Title VII, did net view judges as policymakers since they had “no

discretionary power to fashion policies based on such considerations

as expediency or prudence.” 8S. Ervin and R. Clark, Role of tie

Sopreme Court: Polieymaker or Adjudicator, 1 (1970).

Since municipal judges (who are at the lowest level in the

Missouri court hierarchy) are net subject to mandatory retirement

inder the state constitution, Me. Const. art. V. $26, it ix unlikely

the court below viewed them as having supervisory authority.

ciate judges cannot even vote on local rule: Mo, Const.

art. V, $15. The motivating factor underlying the Fighth

Cireuit’s construction of Section 630(f) is its view that

Congress would not have intended to exclude elected

judges while not also excluding appointed judges. Yet

Congress plainly made this distinction in the statute. The

reason for exempting all elected officials is because they

are subject to selection by the electorate through the

democratic process. Elected officials are “tested at the

polls,” 118 Cong. Rec. 4492 (1972), and Congress did

not seek to interpose the federal courts in this process.

However, this reasoning and purpose are inapplicable to

appointed judges.

Missouri's requirement that its judges retire upon

reaching age 70 presents a pointed example of the type

of arbitrary discrimination that Congress sought to pre-

vent by amending the ADEA to abolish mandatory retire-

ment. Nothing in the ADEA or in pertinent legislative

history supports a construction of the ADEA that denies

appointed judges their rights as employees to be free

from mandatory retirement. This Court should give full

effect to the ADEA’s definition of employee, its narrow

exclusions from coverage, and the general prohibition

against mandatory retirement.

Il. MANDATORY RETIREMENT ‘¢ AGE 70 VIO-

LATES THE EQUAL PROTECIION-CLAUSE.

The court below erred in holditiy that Missouri's man-

datory retirement provision does not violate the Equal

Protection Clause. While a classification based on age

may not be subject to strict scrutiny by a court, Weassa-

chusetts Board of Retirement vo. Murgia, 427 U.S. 307,

S13 (1976) (per evriam), the court’s review of a manda-

tory retirement provision must be-more than a rubber-

stamp approval. See City of Cleburne v. Cleburne Living

Center, ATS UL, 432, 448 (1985+. The court below dis-

missed Petitioners’ claims without any record evidence

ond without examining whether the relationship between

mandatory retirement and a qualified judiciary is “so

attenuated as to render the distinction arbitrary or ir-

rational.” Cleburne, 473 U.S. at 446. Because the State’s

reasons for imposing mandatory retirement are unsub-

stantiated and do not achieve the asserted objective, the

age classification is not rational. See Cleburne, 473 U.S.

- at 448-49,

The State’s reasons for mandatory retirement are

based on unfounded stereotypes about older persons.

Mandatory retirement is premised on the unsupported

notion that people become mentally or physically incom-

petent at a certain chronological age. This prejudicial

stereotype often results in arbitrary discrimination

against older workers.

As the Court recognized in Cleburne,” a close examina-

tion of the asserted reasons for the classification is appro-

priate. In this case, the court below failed to examine

whether the State’s reasons were supported by data or

hy discriminatory stereotypes.

According to the court below, the asserted goal of man-

datory retirement for judges at age 70 is “maintaining

“ highly qualified and vigorous judiciary.” S898 F.2d at

(05. The court reasoned that the legislature could as-

sume that mandatory retirement serves this goal even if

empirical evidence could show that age has no bearing

on performance. The court below erred in denying Peti-

™ In Cleburne, the Court held that a classification based on mental

retardation, while not quasi-suspect, still warranted constitutional

protection. 473 U.S. at 446. The Court closely examined the rea-

sons articulated by the city for a zoning ordinance denying a special

use permit for a proposed group home for the mentally retarded.

175 US. at 448-50. The Court emphasized that nm vative attitudes

or unsubstantiated fears are not permissible bases for sewreyatiny

the mentally retared, 47% U.S. at 448. The Court rejected each of

the reasons set forth by the city, noting that “the record does not

reveal any rational basis” that the sevregation of mentally retared

served the city’s interests. Jd. Rather, the Court concluded that

the ordinance was based on irrational prejudices against the men-

tally retarded. 4723 U.S. at 450.

tioners the opportunity to present such evidence. More-

over, without any factual support for the classification,

the court should have invalidated the provision based on

the standards applied in Cleburne, 473 U.S. at 450.

The court below relied on reasons set forth by the Mis-

souri Supreme Court more than twelve years ago in

O'Neil v. Baine, 568 S.W.2d 761 (Mo. 1978). The rea-

sons asserted by the state for mandatory retirement at

age 70 are:

(1) a judicial system of the highest caliber “justifies

the drawing of a line at an age at which there

is often a lessening in mental and physical abili-

ties ;”

(2) to avoid the tedious task of determining physi-

cal and mental qualifications after a certain age;

(3) to increase opportunities for the young to enter

the judiciary ; and

(4) to assure predictability and ease in administer-

ing pension plans.

Gregory v. Ashcroft, 898 F.2d at 605 (citing O'Neil v,

Baine, 568 S.W.2d at 766-67). These reasons are premised

on prejudicial stereotypes about older persons and are

not legitimately related to the mandatory retirement of

judges at age 70.

Medical research flatly contradicts the first assertion

of a normal decline in mental capability at age 70.

While the unsupported belief in an overall decline in

-mental functioning with age existed at the time of the

decisions in Murgia and O'Neil,’ accepted studies now

2” Since mental capacity, not physical ability, is the primary

qualification for a judge, this section focuses on medical! research

involving mental processes and aging.

21 McEvoy & Cascio, Cumulative Evidence of the Relationship

Between Employee Age and Job Performance, TA J. of Appl. Psych.

11 (1989).

show no decline in average intelligence at least until age

80.** In fact, recent research demonstrates that some in-

tellectual functions may even improve with age.®* Ac-

cording to Dr. T. Franklin, Director of the Public Health

Service, Department of Health and Human Services at

the National Institute of Health, “New research demon-

strates that, in the absence of disease conditions, func-

tioning in the various organ systems can be maintained

at high levels into these later years [70s and 80s].” **

The State’s reasons for mandatory retirement become

suspect when viewed against the State’s practice of re-

taining judges after age 70 “with the same powers as an

act've judge.” Mo. Const. art. V, $ 26(3). Even after

reaching age 70, any retired judge may be granted senior

status and retain all of the authority and receive the

same compensation he did prior to reaching the manda-

tory retirement age. Jd.*° The State’s willingness to con-

tinue to employ retired judges undermines the validity

of its concern about the ability of older judges to per-

form competently.

Given the clear weight of contradictory data, the

State’s “outmoded notion of the relative capabilities,” of

judges at age 70 is irrational. Cleburne, 473 U.S. at 441.

** Schaie, “The Seattle Longitudinal Study: A 21-year Explora-

tion of Psychometric Intelligence in Adulthood” in Longitudinal

Studies of Adult Psychological Development 33 (K.W. Schaie ed.

1983).

** Staudinger, Cornelius & Baltes, The Aging of Intelligence:

Potential and Limits, 503 The Annals 43, 45 (1989).

“4 The Removal Of The Age Ceiling Cap Under The Age Discrim-

ination In Employment Act: Joint Hearing Before the Subcomm. on

Employment Opportunities of the House Comm. on Education and

Labor and the Subcomm. on Health and Long-Term Care of the

House Select Comm. on Aging, 99th Cong., 2d Sess. 26 (1986).

“° In the same year as Petitioners filed this suit, Missouri enacted

a provision taking away the “annual compensation, salary, and

retirement compensation” of any judge who failed to retire at age

70. Mo. Rev. Stat. § 476.683 (1988).

Age simply bears no relationship to performance.” A

line drawn at age 70 is as arbitrary and irrational as a

line drawn at 40.

The second reason asserted by the State is also irra-

tional and too attenuated to be served by mandatory re-

tirement. The State seeks to avoid individual determina-

tions of mental and physical disability by using age as

the cut off for having to make such determinations. Yet,

the State has created a mechanism for the specific pur-

pose of providing individual determinations of a judge's

fitness for office, particularly in the case of retirement

and disability? The State’s asserted desire to avoid

such individual determinations for judges at age 70 or

older is inconsistent with their actual policy and practice.

The premise of this second reason is that old age is

correlated to mental or physica! incompetence, which the

State assumes would be too burdensome to determine on

an individual basis. The premise is not only unfounded,

but its application results in the needless exclusion of a

majority of productive and capable employees based on

an assumption that a few older workers may no longer

he competent. Congress has made it clear that society

shall not deny employment opportunities to an individual

based on gemeralizations or stereotypes about a group to

which the indiv ial belongs.** In other words, Congress

has determined that public policy requires the individual-

Ze McEvov & Cascio, Cumulative FE vide nce of the Re lationship

Between Employee Age and Job Performance, TA J. of Appl. Psych.

11 (1989).

27 The Missouri Constitution art. V, § 24 creates a commission

on retirement, removal, and discipline to determine whether cer-

tain judges shall remain on the bench. Upon complaint and investi-

gation, the commission may recommend the removal, suspension,

discipline or reprimand of any judge. Mo. Const. art. V, $24.

2° H.R. Rep. No. 756, 99th Cong., 2d Sess. 5-6 (1986).

ized treatment of older employees, which the State seeks

to avoid here.

The third premise of the mandatory retirement provi-

sion is to purportedly provide opportunities for the

young. Demographic changes showing a significant de-

cline in the number of youth entering the labor market *”

bring into question the continued legitimacy of this rea-

son. Without an available pool of qualified candidates for

the judiciary, the loss of experienced older judges may

actually harm the State’s objective of maintaining a

highly qualified judiciary.

Finally, the State’s assertion that mandatory retire-

ment aids the administration of pension plans is so at-

ténuated as to be arbitrary and irrational. Cleburne,

473 U.S. at 446. A normal retirement age at which a full

pension is payable is key to pension plan administration,

not a mandatory retirement age. Missouri, like most

states, administers a pension plan covering a majority

of its employees who cannot be mandatorily retired at

age 70 ‘eeause of the ADEA. Nothing in the record or

in practice suggests that a mandatory retirement age

makes Missouri’s pension plan for its judges any easier

to administer than its plan for any other group of state

employees.”

Times have changed considerably since the days when

mandatory retirement was presumed to be rational.

“What was once a ‘natural’ and ‘self-evident’ ordering

later comes to be seen as an artificial and invidious con-

straint on human potential.” Cleburne, 473 U.S. at 466

““W.B. Johnson & A.H. Packer, Workforce 2000: Work and

Workers for the 21st Century (1987).

“Tf ease of administration was a legitimate concern, the State

could require mandatory payout cf pensions at age 70, revardless

of retirement status, similar to that required for private sector

employees at age 70'. by the Tax Reform Act of 1986, 26 U.S.C.

S401 (a) (9) (e).

(Marshall, J., dissenting). Congress has condemned man-

datory retirement as arbitrary, wasteful, and harmful to

the individual and society."' Advances in medical science

demonstrate that age is not an accurate predictor of

mental or intellectual ability. These are sizeable dif-

ferences between adults and the process of intellectual

change. “{PJersons of the same chronological age are not

idéntical as to their mental status. There are 70-year-

olds who function like 30-year-olds and vice versa.” *

The time has come to more closely examine age clas-

sifieations that disadvantage older workers. Congress

has found that older persons continue to face widespread,

arbitrary discrimination in employment based on stereo-

types that are irrelevant to their abilities.” Just as race

or gender are irrelevant to one’s ability to perform, age

has no relation to one’s ability to perform."' Old age is

similarly immutable, since once an individual reaches a

chronological age there is obviously no turning back.”

“1 “'Mandatory retirement based solely upon age is arbitrary

and [| chronological age alone is a poor indicator of ability to

perform a job.” See H.R. Rep. No. 527, 95th Cong., Ist Sess. part 1,

2 (1977). “Forced retirement of people solely on the basis of

chronological age is a waste, unscientific in its background, and

tragic in its consequences.” Retirement Age Policies, Part 1: Hear-

inas Before the House Select Comm. on Aging, 95th Cong., Ist Sess.

15-16 (1977) ‘statement of Dr. Irving Wright).

®2 Staudinger, Cornelius, & Baltes, The Aging of Intelligence:

Potential and Limits, 503 The Annals 43, 45-46 (1989).

“\ Working Americans: Equality At Any Age, Staff Report of

the Senate Special Comm. on Aging, 99th Cong., 2d Sess. 1 (1986).

This congressional] finding questions the contrary premise of Murqia

that older persons have not been “subjected to unique disabilities

on the basis of stereotyped characteristics not truly indicative of

their abilities.” Myvraia, 427 U.S. at 313.

“* Wadman & Avolio, A Meta-Analysis of Age Differences in Job

Performance, 7) J. of Appl. Psych. 33 (1986).

“Neil v. Baines: Application of Middle-Level Scrutiny to Old

Aye Classifications, 127 U. Pa. L. Rev. 798, 808 (1979); Age Dis-

The devastating effects of mandatory retirement on the

individual and society cannot be overemphasized. Manda-

tory retirement condemns individuals to “an idleness that

hastens their decline.” ” It is “a cruel blow to the dignity

and self-respect of one who has devoted his life to produc-

tive work, and takes a dramatic toll.” Rogers v. Exvron

Engineering, 404 F. Supp. 324, 329 (D.N.J. 1975).

“The shock of compulsory retirement may be so over-

whelming as to generate a lasting state of anxiety and

even depression.” ** Forced retirement, not age, can be

the cause of a significant decline in mental and physical

ability. When individuals have the opportunity to re-

main active and involved, they are able to maintain and

even enhance their intellectual functioning in old age.**

As Congress has recognized, it is difficult to reconcile

the reasons for mandatory retirement with the reality of

varying abilities at the same age. Indeed, Justice Oliver

Wendell Holmes served with distinction on this Court

into his nineties. See 132 Cong. Ree. 32,658 (1986)

(statement of Sen. Metzenbaum!. Justice Holmes’ distin-

crimination in Employment, 50 N.Y.U.L. Rev. 924, 930 n.27 (1975

Constitutional Attacks on Mandatery Retirement: A Reconsidera-

tion, 23 UCLA L, Rev. 549, 549 n.5 (1976).

6 McDougal, Lasswell & Chen, The Human Rights of the Aged:

An Application of the General Norm of Nondiscrim ination, 29 U.

Fla. L. Rev. 639, 642 (1976); Somers, Socia!, Economic, and Health

Aspects of Mandatory Retirement, 6 J. of Health, Politics, Policy

& Law 542, 547 (1981) (Studies show that the mortality rates of

older persons increased after involuntary retirement .

47 McDougal, Lasswell & Chen, The Human Rights of the Aged:

An Application of the General Norm of Nondiserimination, 29

U. Fla. L. Rev. 639, 641 (1976).

%* Schaie, “The Seattle Longitudinal Study: A 2l-vear Explora-

tion of Psychometric Intelligence in Adulthood” in Long tuding!

Studies of Adult Psychological Development 33 KW. Schaie ed.

1983); Arbuckle, Gold, & Andres, Cognitive Functioning of Older

People in Relation to Social and Personality Variables, L Psych

and Aging 55 (1986),

guished career makes a telling point—that ability, not

age, is the most accurate measure of performance.

CONCLUSION

For the foregoing reasons, AARP urges the Court to

reverse the decision of the Eighth Circuit. AARP re-

spectfully requests that the Court hold that the manda-

tory retirement of appointed state court judges violates

the ADEA and that the mandatory retirement of both

elected and appointed judges violates the Equal Protec-

tion Clause. |

~ Respectfully submitted,

STEVEN S. ZALEZNICK

CATHY VENTRELL-MONSEES *

AMERICAN ASSOCIATION OF

RETIRED PERSONS

1909 K Street, N.W.

Washington, D.C. 20049

(202) 662-4957

Attorneys for Amicus Curiae

American Association of

Retired Persons

January 14, 1991 * Counsel of Record

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