# Amicus Curiae Brief — Gregory v. Ashcroft

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 979

## Text

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

29

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)

iv

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

12
11

11

14, 15, 16, 17, 19, 20

2

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)

6

12

15, 16
12

16, 20
12

v

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

11-12
16

2

21

12

11

13

l

1
5

passim

4
11
4

14
18
3, 13
17

vi
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

17

20

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

21

20

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,
Ve
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-

2

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-

4

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«

wo

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).

6

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

S

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

10

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).

11

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).

12

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).

15

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.

14

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

15

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.

16

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).

17

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).

18

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).

19

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).

20

(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-

21

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),

22

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0006%3A10. Public record. Not legal advice.