Gregory v. Ashcroft – Oral Argument – March 18, 1991

Media for Gregory v. Ashcroft

Audio Transcription for Opinion Announcement – June 20, 1991 in Gregory v. Ashcroft

del

William H. Rehnquist:

We’ll hear argument next in No. 90-50, Ellis P. Gregory and Anthony P. Nugent v. John D. Ashcroft.

Spectators are admonished not to talk.

The Court remains in session.

Mr. Shoemake, you may proceed.

Jim J. Shoemake:

Thank you, Mr. Chief Justice, and may it please the Court:

We are here on a case determining the validity of a Missouri mandatory retirement provisions… provision for State court judges.

The issues that we have briefed are two.

One is whether to those judges in Missouri who are appointed to office, whether or not they are covered by the protections of the Age Discrimination in Employment Act.

With regard to judges in Missouri who are elected to office, we have maintained that the mandatory retirement age for those judges violates the equal protection guaranteed by the Fourteenth Amendment.

The decision below by the Eighth Circuit was that with regard to the elect… with regard to the appointed judges, they were not covered by the Age Discrimination in Employment Act because the act exempts appointees at the policy-making level, and the court held that judges in Missouri are policy makers, and hence not covered by the act.

The Eighth Circuit also ruled that there was a rational basis for the mandatory retirement of all judges, and hence did not violate the Fourteenth Amendment.

William H. Rehnquist:

The district court… the court of appeals accepted the district court’s finding that the judges were not elected officials in Missouri, did it not?

Jim J. Shoemake:

Mr. Chief Justice, the Eighth Circuit accepted that proposition, but I must say in fairness there was a sentence which indicated if that issue had been briefed in the Eighth Circuit, the Eighth Circuit might have disagreed with that finding.

William H. Rehnquist:

Come out differently.

Jim J. Shoemake:

But the district court did find that the appointed judges were not elected to office, they are appointed to office.

And we submit that is the correct determination.

Missouri–

Sandra Day O’Connor:

Why… why do you suppose Congress would have wanted to exclude from the ADEA elected judges but not appointed judges?

Jim J. Shoemake:

–Because I don’t believe that Congress wanted to be looking over the shoulder of the voters to determine the motive or [inaudible] intention of the elected… the voters as to what motives they may have had in voting for elected officials, whether those elected officials were judges or Governors or legislators.

Sandra Day O’Connor:

Well, now, Missouri selects its judges pursuant to constitutional provisions in the State of Missouri?

Jim J. Shoemake:

The… that is correct.

Sandra Day O’Connor:

State constitutional provisions.

Jim J. Shoemake:

That is correct, Justice O’Connor, but–

Sandra Day O’Connor:

And you think it’s sufficiently clear that Congress intended to override these State constitutional provisions without ever making clear that intent?

Jim J. Shoemake:

–I think it is clear that the Congress intended that the ADA be construed broadly and that the exceptions be narrowly construed.

And I think that when the ADA was enacted there were 30 States approximately that appointed judges, and that those Congressment and those Senators who voted for that ADA were fully aware that it may cover the judges.

There is nothing in the legislative history of the ADA itself which indicates whether the Congress intended or didn’t intend to include or exclude the judges.

Sandra Day O’Connor:

Well, don’t you think that when we are dealing here with a preemption of a State constitutional provision of this significance to the State, that we should look for a clear expression of intent by Congress, not something that just appears never to have even been considered?

Jim J. Shoemake:

I believe, Justice O’Connor, there has been such clear intent or expression by the Congress, because when the act was amended in 1974 it was amended to specifically apply to States and political subdivisions as employers.

And that would be, in our view, the State of Missouri is an employer hence covered by the act, and that a judge is an employee and hence covered by the protections guaranteed by the ADEA.

William H. Rehnquist:

I thought Justice O’Connor’s question was addressed not to whether the State was covered as an employer, which it obviously is under, certainly we upheld that in EEOC against Wyoming, but whether the statute, in view of the proviso, should be found to reach State court judges.

Jim J. Shoemake:

I believe, Your Honor, that it should be read to reach State court judges.

Again I fall back on the fact that the statute, remedial as it is, was to be construed broadly.

And clearly, in our view, had Congress deemed it appropriate to exclude judges, as it excluded elected officials and those on the elected official’s personal staff, it could have done so.

And it did not do so.

And yes, Mr. Chief Justice, I am advocating that the act does include those judges even if in so construing you may be attempting to override a constitutional provision of the State of Missouri.

In Missouri we have two selection processes for the judges.

The supreme court and the court of appeals and trial judges… supreme court and court of appeals are… are selected pursuant to the Missouri Non-Partisan Court Plan, as are all judges in the metropolitan area of St. Louis and Kansas City.

Everywhere else in the State of Missouri the judges are elected.

There is a greater number of judges who is elected… who are elected than those who are appointed.

Harry A. Blackmun:

Why is that distinction made, do you think, Mr. Shoemake?

Jim J. Shoemake:

The… the language when the Missouri Plan was adopted initially applied to only the supreme court and the appellate judges, and the purpose was to remove partisan politics from the selection of judges.

And then there was later an amendment to provide that same process for selection to the City of St. Louis and Kansas City, then later to St. Louis County, which is a contiguous county to the City of St. Louis.

And there was some… the suggestion is there was some resistance in the rural area where people wanted their judges to be elected and run for election.

And on the election process… I’m getting a little ahead of myself… judges who are elected, they run in primaries just like any other candidate and then they run in the general election.

Judges who are appointed, supreme court judges for 12 years and the intermediate levels down to the associate circuit judge for 4 years, when their terms are up, or when it’s time, they don’t run against anybody.

In fact, the Missouri constitution prohibits appointed judges from engaging in politics in any manner, holding any office, making any contribution, or supporting any candidate.

And the only question on the ballot is shall Judge so-and-so be retained in office.

Byron R. White:

Well, in order to have another term he has to get the votes, doesn’t he?

Jim J. Shoemake:

He has to get the votes, or he has to be voted out of office.

That is correct.

Byron R. White:

I know, but he is out of office if… I mean, his term is over.

Jim J. Shoemake:

His term and over, and–

Byron R. White:

How does he manage to get another term?

Jim J. Shoemake:

–If, if he’s not voted to be retained, you mean, Your Honor?

Byron R. White:

Well, how does he get another term?

His term is over, how does he get–

Jim J. Shoemake:

He’s on the ballot.

Shall Judge so-and-so be retained, yes or no.

Byron R. White:

–So in effect the voters who vote to retain him say yes, he should have another term.

Jim J. Shoemake:

That is correct.

But it–

Byron R. White:

Why isn’t he elected?

Jim J. Shoemake:

–The reason he is not elected is the foundation for the Missouri Plan is that… first of all, he’s not elected when he gets his office.

He is appointed.

Byron R. White:

That’s right.

Jim J. Shoemake:

A merit selection commission appoints… submits three names to the Governor.

The Governor selects one of them.

Byron R. White:

But the Governor can’t give him another term.

Jim J. Shoemake:

No, the Governor cannot give him another term.

Byron R. White:

The electorate has to give him another term.

Jim J. Shoemake:

But the process, we submit, as we have in our briefs, of retention or nonretention is like a question on the ballot, and not like one for–

Byron R. White:

Well, anyway, that issue isn’t here, I guess.

Jim J. Shoemake:

–We submit that issue is not here, although the State has argued that.

John Paul Stevens:

Mr. Shoemake, are all three of the judges involved here, have they been retained or has any of them been appointed?

Jim J. Shoemake:

One has–

John Paul Stevens:

One has just been appointed and not stood for retention yet.

Jim J. Shoemake:

–Oh, these judges?

Oh, I see.

No, these judges have been retained.

John Paul Stevens:

They all have?

So we don’t have before us a judge who was just been appointed and not yet retained?

Jim J. Shoemake:

That is correct, Your Honor.

John Paul Stevens:

But the issue would clearly apply to them in any event?

Jim J. Shoemake:

That is correct, Justice Stevens.

But… in Missouri, under the Missouri Non-Partisan Court Plan permits effective date, now some… there was one judge who was grandfathered in, but from the effective date, there has never been a judge who has been failed to be retained in office.

There was one judge in Kansas City who was an elected judge, was grandfathered in, and when it was time for retention he was not retained.

But those who have been appointed, there is not a single incidence of any of those judges who have not been retained in office.

We submit that to understand and appreciate the intent of the Congress in enacting the ADEA, it’s best to look at the legislative history and the discussions that went on in the amendment to title VII of the Civil Rights Act, which contains the same language and the same exemptions about elected officials and so forth.

In that it was clear that what the Congress was intending was to exempt an elected official and that elected official’s team, his personal staff, his legal advisors, those who made policy for him.

Jim J. Shoemake:

In fact the example is such as Cabinet officers and persons with comparable responsibilities in talking about policy making.

Antonin Scalia:

I was intrigued by that theory.

That would mean that if you have at the State level the equivalent of independent regulatory agencies that we have at the Federal level, Nuclear Regulatory Commission, Federal Communications Commissions, and so forth, whose people are not Cabinet officers.

They are not part of the President’s team.

The whole theory of it is that they are supposed to be independent.

You assert that those people would not be covered by this exemption, right?

They have to–

Jim J. Shoemake:

I… that’s–

Antonin Scalia:

–They have to be not only appointed by the elected official, but they have to be subject to his direction and command.

Jim J. Shoemake:

–They have to be serving that officer.

In fact–

Antonin Scalia:

Now why, why would they make that kind of a distinction?

That seemed to me very strange.

Jim J. Shoemake:

–Well, because they wanted that elected official to be able to have those persons who were going to serve him and generate the policy that he stands for, or attempt to, for which he was elected, to be able to serve him and be exempt from the act.

In fact, in the National League of Cities, while the language is a little different, the opinion talks about, in construing those exemptions, talks about… the language is serving such an office holder.

Those persons who are exempt are exempt because they are serving such an office holder.

We submit the judges in Missouri aren’t serving the appointing office holder.

They are independent judges, and they remain independent.

And the statutory construction, again, is borrowed time and time again by the courts from the 1972 amendments as it relates to title VII, wherein there the discussion was what kinds of exemptions were to be included.

And there was only one mention… there is no mention in the reports itself or themselves about exempting judges.

The only mention is in some Senate, Senate debate, one time.

Senator Irvin from North Carolina used the word “judge”, at that time describing the Governor, the chief justice, and at the time he was doing it all judges in North Carolina were elected.

So there was no mention about appointed judges.

The judges, we submit, do not fall within the exemption of being appointees at the policy-making level.

And my emphasis is on level.

We think that’s an unnatural construction of words as they are used in the Federal system by Congress when it refers to those who are appointees at the policy-making level.

William H. Rehnquist:

Well, Mr. Shoemake, you said a moment ago that it covers… the exemption exempts elected officials and then it goes on to say any person chosen by such officer to be on such officer’s personal staff, and then it goes on to say or an appointee on the policy-making level.

Now, that must mean something more than just an appointee on an elected official’s staff or you wouldn’t need it.

Jim J. Shoemake:

Well, what I said on the elected official’s staff, if I limited it to that I misspoke, Mr. Chief Justice.

What I’m talking about is those who are normally recognized as persons who make policy.

Jim J. Shoemake:

And the example used was such as Cabinet officers and persons with comparable responsibilities at the local level.

Now, I’m reading from the conference report on the amendment to title VII but, again, that language has been used in construing the ADEA which has the precise same exemptions.

William H. Rehnquist:

But you do agree that the phrase “appointee on the policy-making level” is independent of the phrase

“a person chosen by such officer to be on such officer’s personal staff? “

Jim J. Shoemake:

It’s disjunctive, so I think it would be independent of that phrase, yes, Mr. Chief Justice.

The judges in Missouri, we submit, as the Second Circuit found in EEOC v. Vermont, may incidentally make policy, but their basic function is to decide legal disputes.

They may fill in gaps, they may do other things, but the judges… and they regulate the bar, pass rules for the bar and for the courts, the supreme court does.

But their basic function is to resolve legal matters.

And–

Byron R. White:

Well, I know, but I suppose… is there still a common law element in Missouri, isn’t there?

Jim J. Shoemake:

–Yes, there is, Justice White.

Byron R. White:

Judges keep developing the common law in Missouri?

Jim J. Shoemake:

They do keep developing the common law in Missouri.

Byron R. White:

And they have to, they have to decide what the rule is to decide a case?

Jim J. Shoemake:

They do.

Byron R. White:

And you think that is… that isn’t making any kind of policy?

Jim J. Shoemake:

I don’t mean to suggest that, Justice White.

There may be some policy connected with… but before they engage in that, whatever, there has to be a case or controversy in front of that court.

And whatever the court does, generally, there may be some exceptions that I am unaware of, there are going to be certain parameters in which that court operates, maybe in the context of the constitution or the common law.

But that’s where the court is.

It has a context in which it makes those judgments.

Anthony M. Kennedy:

Well, I assume the Governor of the State of Missouri has to obey the State constitution and the common law, too, doesn’t he?

Jim J. Shoemake:

That is correct.

Anthony M. Kennedy:

No official is completely unrestrained from certain minimal rudiments of discretion.

Jim J. Shoemake:

I don’t mean to suggest he is.

But again–

Anthony M. Kennedy:

Well, then I don’t see how your distinction is persuasive.

Jim J. Shoemake:

–Well, the distinction is the judges in Missouri don’t make policy, for example, that… the policy will be that we’re only going to allow public service companies to come for rate increases every 3 years.

That’s going to be the policy we’re going to develop.

Byron R. White:

So you would say that… I suppose you have administrative agencies in the State?

Jim J. Shoemake:

We do.

Byron R. White:

And they are authorized by the legislature to issue regulations–

Jim J. Shoemake:

Rules and regulations.

Byron R. White:

–implementing the statute?

Jim J. Shoemake:

That is correct.

Byron R. White:

And those people are appointed?

Jim J. Shoemake:

Those people are appointed.

Byron R. White:

Therefore unprotected by the AD… by the Age Discrimination Act?

Jim J. Shoemake:

It would be our view that those who are the head of those agencies, such as the Public Service Commission who may generate policy, could well be unprotected.

Byron R. White:

Well, they’re members of the agency that issue the regulations.

Jim J. Shoemake:

If their appointments are for a number of years, 3 years, 4, then I would have to say yes, that they are unprotected.

Byron R. White:

Although the judges who review their issuance of the regulations are not?

Jim J. Shoemake:

Those judges who are appointed.

Those judges who are appointed to office.

John Paul Stevens:

Yes, but Mr. Shoemake, it doesn’t say or an appointee who is a policy maker.

It says an appointee on the policy-making level.

Jim J. Shoemake:

That is correct.

John Paul Stevens:

Does that not mean comparable responsibility or comparable salary or something of that kind, rather than that the person must be a policy maker himself or herself?

Jim J. Shoemake:

Well, the plain language of what Congress meant, as we read it, is they meant on the policy-making level.

John Paul Stevens:

Right.

Jim J. Shoemake:

And–

John Paul Stevens:

For example in salary way judges are paid at executive lever… level 2, 3, or 4, I don’t know what it is, but they often have defined judges by the level of… for certain purposes is what I’m trying to say.

Just explain why the word “level” isn’t critical in this case.

Jim J. Shoemake:

–I think that is the critical word.

The word level is what is critical.

I think what we submit the Court must look to is what did the Congress mean using the word level, not policy maker, but policy-making level.

And again, harkening to the conference report on the amendments to title VII, and the only examples that we’ve had as to what was meant at the policy-making level, it said such as Cabinet officers and other comparable responsibilities at the local level.

And we submit that in using that, the Federal Congress, the Congress, intended it to be those that the Congress generally recognizes as those who reach a level where they make policy.

And that would be, in our judgment, those such as the example here, the Cabinet, and not to the judges.

There has never… there is no… ever any example or suggestion given that it would be appointed judges.

William H. Rehnquist:

Did Missouri at one time have an exemption from tort liability for charitable institutions, charities?

Jim J. Shoemake:

Yes, it did.

William H. Rehnquist:

And it… does it still have it?

Jim J. Shoemake:

It does not… under certain circumstances it does, but generally it does not.

William H. Rehnquist:

Was that result changed by the Supreme Court of Missouri?

Jim J. Shoemake:

It was.

As was–

William H. Rehnquist:

You wouldn’t think that was policy making?

Jim J. Shoemake:

–I think that would be… the tougher question of whether that’s policy making, I’d have to say it is, but within the context of a matter of a dispute that comes before it.

I don’t think they start out to say our policy is going to be henceforth as a court that there is no immunity for charitable institutions.

I think there has to be a case or controversy in which they discuss prior cases, prior precedent.

We’ve just had the change in Missouri recently from contributory negligence as a defense to the one of comparative fault.

Byron R. White:

So… well, you would say that if an administrative agency in your State is authorized to issue regulations interpreting a statute and to… and to adjudicate cases based on that regulation, those regulators are not protected, as you said a minute ago?

Jim J. Shoemake:

That would say that those who are appointed–

Byron R. White:

Well, what if they, what if the agency decides well, regulations are fine but we’re going to operate by adjudication.

We’re going to announce all of our rules by adjudication, and we’re going to follow our rules that we announce by adjudication.

Just stare decisis.

That’s going to be the rule.

Jim J. Shoemake:

–Um-hum.

Byron R. White:

I suppose you would say that those regulators are protected or unprotected?

Jim J. Shoemake:

I would have to say in my mind, in my example, they’re still unprotected.

Byron R. White:

Unprotected?

Jim J. Shoemake:

Unprotected.

Byron R. White:

Because they–

Jim J. Shoemake:

Because they make that judgment.

That is their policy.

They make that judgment that that’s the way this regulates… regulating body is going to operate.

Byron R. White:

–But common law, the… when they announced the rule in the case they were announcing one that they were going to apply in all future cases.

Jim J. Shoemake:

That is correct.

But again, the difference… if the regulator, the Public Service Commission in Missouri which regulates, obviously, the public service company, if it says from now on we’re just going to follow the rules and we’re not going to enact… that have already been established, we’re not going to enact new rules, that, in my judgment that’s policy.

Jim J. Shoemake:

That’s a policy decision that they make.

And there’s no case or controversy in front of them at the time.

It’s just a judgment that they make as a matter of policy, those who have been appointed to those policy-making positions by the Governor.

If I may, there are judges in Missouri who are elected.

They are the only officials in the State government of Missouri who have to mandatorily retire at 70 who are in nonphysically demanding jobs, not legislators, not the Governor, not the librarian, not the janitor.

Only judges have to retire at 70.

And we recognize this Court’s pronouncement that age is not a suspect class, and that if there is a rational basis for upholding that classification we lose.

We submit to the Court that there is no rational basis for requiring judges to retire and not requiring any other employee in the State of Missouri to retire.

Antonin Scalia:

Well, maybe the people who vote for other officials have a better knowledge of whether they are doing a good or bad job, and maybe it’s a lot harder for the voter to know whether a judge is doing a good or bad job because it depends upon interpretation of a lot of dusty old statutes.

Isn’t that a rational basis?

You can trust the electorate to know when, when an elected executive or legislative official can’t hack it anymore, but you really can’t trust them to know whether a judge is doing it.

Jim J. Shoemake:

I would not… that was never an articulated rational basis for Missouri–

Antonin Scalia:

Does it have to be an articulated one?

Jim J. Shoemake:

–I would… I don’t think we can guess, Justice Scalia, as to what the rational–

Antonin Scalia:

Oh, I think we have guessed all the time.

Jim J. Shoemake:

–as to what… well, Missouri has articulated in the supreme court case as to what the rational bases were.

In my… you asked me, in my experience, having come from a rural area in Missouri, in many instances there is no more hotly contested election than for the circuit judgeships that cover three or four counties, and what that judge has done and not done is brought to the public’s attention by his opponent time and time and time… his or her opponent, time and time again.

So I do believe the electorate is fully informed, maybe more so than most elections as to what the circuit judges who are elected in Missouri are doing.

William H. Rehnquist:

But now, are those circuit judges, do you contend they are covered by the ADEA?

Jim J. Shoemake:

No, I do not, Mr. Chief Justice.

I was moving on to my equal protection argument that to require those judges, all judges in Missouri, including the elected judges, to retire at 70 violates the equal protection guarantees–

William H. Rehnquist:

Yeah, but how about your response to Justice Scalia’s question with respect to the judges who would be covered by the ADEA, and so… the appellate judges in Missouri?

Jim J. Shoemake:

–Well–

William H. Rehnquist:

Are those elections hotly contested?

Jim J. Shoemake:

–It seems to me… no, they’re not contested at all.

Those are appointed.

They have no opponent, they are not contested at all.

It’s just simply on the ballot shall Judge so-and-so be retained.

Byron R. White:

Yes, but there may be terrific campaigns going to, on both sides of the issue, should this fellow be or this lady be retained or not.

Jim J. Shoemake:

There are those–

Byron R. White:

There may be a lot of money spent on both sides of the case.

Jim J. Shoemake:

–As existed in California, I recognize those cases.

But again, those citizens, instead of being uninformed, it seems to me–

Byron R. White:

Haven’t there been some votes, some numbers of votes against retention on certain people?

Jim J. Shoemake:

–There have been substantial votes.

My recollection is in… is in the St. Louis area where I live that the retentions range all the way from 60-some percent on up.

And there is not–

Thurgood Marshall:

Is that in the record?

Jim J. Shoemake:

–I beg your pardon?

Thurgood Marshall:

Is that in the record?

Jim J. Shoemake:

That is not in the record, Justice Marshall.

Anthony M. Kennedy:

It’s public information though, I think.

Jim J. Shoemake:

It’s public in… I probably should have.

But with regard to the equal protection argument, we submit there is no rational basis for requiring only judges, even those who are elected, to retire, because one of the rational bases stated is that the Supreme Court in Missiouri, when it wrote the O’Neil opinion in 1976, said we all recognize that 70 is about an age… is about the time when physical and mental deterioration commences.

The studies are all contrary to that as far as mental abilities are concerned.

The announcement that it made for ease in administering a pension plan doesn’t change that pension plan any different than any other pension plans for those officials in the State of Missouri.

The articulation that it opens up opportunities for young members of the bar, no different than opening up opportunities for other members or for other segments of the population.

William H. Rehnquist:

Well, isn’t there something to be said, though, for public office, high public office turning over every so often?

And with your other high public officials in Missouri you have regular, you know, 4-year election.

With judges you have a much longer term.

Jim J. Shoemake:

With the circuit judges it’s a 6-year election in Missouri, for those who are elected.

Those who are retained as circuit judges, it’s 6 years.

Associate judges are 4 years.

Justice Gregory is an associate–

William H. Rehnquist:

How about the appellate judges?

Jim J. Shoemake:

–8 and 12, Your Honor.

12 years for, Mr. Chief Justice, for the supreme court.

But that, in my view, that same rationale, that same argument if advanced would be applicable to the others, the Governors, the legislators, the Senate, the House, the prosecuting attorney.

William H. Rehnquist:

Well, except they are, they have shorter terms, certainly, than the appellate judges.

Jim J. Shoemake:

Shorter terms than the appellate judges.

Jim J. Shoemake:

Yes, they certainly do.

If I may, I would like to reserve–

Byron R. White:

Well, would you say that, would you say the Age Discrimination Act is unconstitutional in exempting elected officials?

Jim J. Shoemake:

–No.

I do not think it’s unconstitutional in exempting elected officials.

Byron R. White:

Well, couldn’t you argue there is no rational basis for exempting them?

Jim J. Shoemake:

Well, I don’t think so, because I think that–

Byron R. White:

Well, you just did.

Jim J. Shoemake:

–I don’t recall doing it.

Byron R. White:

Well, you… you said there is no rational basis for not protecting these elected judges.

Jim J. Shoemake:

Under the equal protection under the Fourteenth Amendment, yes.

Byron R. White:

Yes.

Jim J. Shoemake:

The ADA is a specific… you mean is it, would I argue it’s unconstitutional for the, that the ADA exempted elected officials?

Byron R. White:

Yeah.

Jim J. Shoemake:

I would not argue that.

Byron R. White:

Not even as applied to judges?

Jim J. Shoemake:

I would not.

Thank you.

William H. Rehnquist:

Thank you, Mr. Shoemake.

Mr. Deutsch, we’ll hear now from you.

James B. Deutsch:

Mr. Chief Justice, and may it please the Court:

This case contains many interesting issues of statutory construction and legislative history, constitutional law.

I plan to first address, as my colleague did, the appointed officials’ exemption, although I will then address the elected officials’ exemption, because we do believe it is properly before the Court, and I do intend to seek the benefit of that exemption for the State of Missouri, finally concluding with the constitutional issues, if I have time.

If Missouri’s Non-Partisan Court Plan judges are appointed officials, as the petitioners contend, then they are most certainly appointed officials on the policy-making level within the meaning of the ADEA and exempt from the requirements of ADEA by the language of the act.

I will tell you that the language of this statute is not a masterpiece of legislative draftsmanship.

I do not find it to be clear.

However, I do find from the legislative history that there were at least two motivating purposes in Congress’ mind, and the first of those was federalism.

The first principle that Senator Irvin had in mind in introducing this amendment was that he did not want to infringe upon the prerogatives of the State in the selection of their own government officials, their own form of government.

The second principle was one that has already been announced, and that is that the Congress realized that some officials in government had their own cleansing agent.

The ADEA seeks to prohibit the use of age as an across-the-board method for taking people out of public as well as private employment.

James B. Deutsch:

However Congress did understand that, for instance, elected officials stand before the electorate.

They have their own problems to deal with.

They do not need coverage of the ADEA, and indeed it is unwise, for many of the reasons that were earlier stated, that they should do so.

The voters are the ones that decide whether elected officials have done their job and whether they are competent.

These two principles, I think, when read into the statute for an understanding, although still not creating crystal clarity, I think makes it clear that the Congress chose broad language.

The Congress said appointed officials on the policy-making level, in addition to three other exemptions.

They chose broad language, they chose to favor federalism.

It is our argument to this Court that the Court should indulge them that favoritism towards the Federal system and agree that all State judges were intended to be exempted by this particular provision.

The… there appears additionally nothing in the language of the statute or within the legislative history which excludes judges, and this goes to the question of a clear statement.

While this may be an unusual case, perhaps, for the application of a clear statement because the Congress did say on the one hand it applies, and then turned around and said but it doesn’t apply to certain people, we do believe that given the interests of federalism which were certainly in the minds of the Eighth Circuit court of appeals, clearly in the mind of the First Circuit court of appeals in EEOC v. Massachusetts, that the principles of federalism that the Congress had in mind indicates that any mention of the judiciary in the language of a statute which otherwise did not deal with specific officials was probably intentional.

It was intended to be broad, intended to be broadly read.

Additionally, we would suggest that the contention that judges are not policy makers be categorically rejected by this Court.

Judges most certainly are policy makers, at least in the State of Missouri, which is a common law State.

The list of decisions from our courts that have outlined and defined the common law and set the policy for the State of Missouri is endless.

And more than that, I think that the rather disparaging nature of describing judges and their work to be law in fact computers that simply apply known principles of law to established fact, is something that only happens in the easy cases which usually get handled by two lawyers and their clients, and doesn’t even make it before a court.

Courts deal with cases.

They deal with disputes.

They deal with real problems.

It is inappropriate to describe a judge on any basis but that of being a policy maker.

I would note that the petitioners, of course–

Byron R. White:

xxx normally call them law makers.

James B. Deutsch:

–That was one of the terms that were ascribed to them, and I think that the understanding that should be made if in fact the Congress had the… any knowledge–

Byron R. White:

You would describe them as making the common law, wouldn’t you?

James B. Deutsch:

–Certainly.

They make law, just as the legislature makes law in–

Byron R. White:

You don’t find it under some rock?

James B. Deutsch:

–Well, we sometimes wonder, Your Honor.

[Laughter]

But it… in fact, no, the courts in our State draw upon a long history of common law and order to shape the common law.

In a couple of the instances that my colleague mentioned, abolishment of sovereign immunity switching to a comparative fault system after years of urging our legislature to do so to no avail, our courts do in fact make policy.

James B. Deutsch:

But I think that the important thing to understand is that the petitioners do not seem to describe adequately the concept of policy making in the State government context.

Everybody in State government, I hope everyone in the Federal Government, is confined to certain parameters.

The legislature does make the laws, but the legislature makes the laws consistent with the principles of the constitutions, both State and Federal.

The executive does implement the laws and he certainly has great policy making potential there, but he has to stay within the intent of statutes that are enacted by the legislature and also within the Constitution, and it is the court’s job to make sure that both of the other two branches stay within their authority.

The concept of policy making that I get from the choice of language by the Congress is an understanding that policy in the government sense is made by all three branches of government.

It is made together.

It sets the public policy for the State, like Missouri, for all of the other States.

It is not a single well-defined monolithic duty of one branch.

It is something that applies to all three branches.

Antonin Scalia:

Mr. Deutsch, you know, we have to make the best we can of the language that Congress wrote for us.

You say there are three exceptions set forth there, right?

One is any person elected to public office, right?

James B. Deutsch:

Yes, Your Honor.

Antonin Scalia:

And then any person chosen by such officer to be on such officer’s personal staff.

I guess four.

James B. Deutsch:

There are four separate exemptions.

Antonin Scalia:

Or an appointee on the policy level.

And you say that goes all by itself.

James B. Deutsch:

Well, it… from the way that the statute was formed, it clearly was by itself.

I agree that its placement in a list of provisions is somewhat unusual, but again, it–

Byron R. White:

Well, not if it’s disjunctive.

James B. Deutsch:

–It is disjunctive, and that was one of the things pointed out by the First Circuit in EEOC v. Massachusetts, is that it’s perhaps not the most easily understood statute to be read, but clearly the House added that last provision, really the third exemption, in a conference.

It was not added by the Senate.

All of the legislative history that has been utilized contained only the three exemptions for elected officials, for immediate advisors and personal staff.

And all of the debates concerning that naturally do seem to approach, perhaps, that particular form, that formulation of an elected official, his staff, and his Cabinet.

We argue, however, that the Congress chose, together, House and Senate, the appointed official on the policy-making level.

It is broad.

It should be interpreted broadly enough to include officials like judges.

It is not judges, perhaps, that are the only officials who would fit within there, but clearly judges are policy-making officials and can fit within that exemption, and in the interest of federalism should.

John Paul Stevens:

Just refresh my recollection.

John Paul Stevens:

They are appointees of the Governor, are they not?

Or are they appointees–

James B. Deutsch:

The Missouri Plan judges are appointees of the Governor according to the Missouri Plan.

John Paul Stevens:

–Who is an elected official.

James B. Deutsch:

He is an elected official.

That’s correct.

And that is why I believe that the structure that it takes on… we have discussed only judges because that is what is at issue here.

However, I would, I would suggest to the Court that this exemption does cover the example that was made earlier, the equivalent of the ICC on the local level is our Public Service Commission.

These are people who are appointed by the Governor, and yes, they are not answerable to him.

They are not supposed to be.

They are supposed to be independent.

They are clearly policy makers.

They are appointed for terms which are taken beyond any individual Governor.

However I think that that is the nature of the position that was had in mind by the Congress when they enacted that position.

And clearly, when you consider then Missouri Plan judges, they fit within that same type of a classification of an appointee made by the Governor for a term which then he will cease to have any control over.

Anthony M. Kennedy:

In the last clause of the first sentence of the statute, do you interpret the phrase

“with respect to the exercise of the constitutional or legal powers of the office. “

to modify just immediate advisor?

James B. Deutsch:

I think that that was the intention.

And I think what they’re referring there to is the Cabinet official exemption, the illustration that was so often used in the Senate that it is still in the conference report.

That it was intended to limit the reach down through the chain of command, especially with regard to the elected official, and using the Governor as an example, to be an immediate advisor under that particular exemption.

I do not believe that it is necessarily read in conjunction with the separate exemption for appointed judges.

Anthony M. Kennedy:

Your interpretation would be more sustainable if there was a comma after the word “level”, I take it?

James B. Deutsch:

I again will apologize for the lack of clarity of the statute, Your Honor.

Anthony M. Kennedy:

Well, sometimes the elimination of a comma is designed to aid us in the construction, and in this case it would indicate that the final clause applies and modifies both appointee and advisor.

James B. Deutsch:

That is an available reading.

That is the reading, I think, that the petitioners would place upon the statute.

I would again say that if the rule to be applied, however, in an area dealing with the Federal and State balance, which this is, requires some degree of confidence that that is the correct interpretation, that degree of confidence is not present, and in fact the Court should, if it errs at all in interpretation, err in favor of the Federal-State balance and its maintenance.

Antonin Scalia:

We should try not to err at all.

I think we’re going to try to get it just right.

Antonin Scalia:

[Laughter]

James B. Deutsch:

I know you do, Your Honor.

Additionally we would suggest that all judges under the Missouri Non-Partisan Court Plan, elected and appointed, as they have been described, are exempt from the requirements of ADEA because they are elected officials, elected by the qualified voters of the State of Missouri.

There are 342 judges in the State of Missouri under article V of our constitution, the Missouri Plan.

201 of these are elected.

These are the judges, circuit and associate circuit, in primarily the rural areas of the State.

They do run in partisan elections.

40 percent of our judges, 141, are under the Missouri Plan.

They are appointed by the Governor.

They are… by a process where a commission appoints or selects three of the most capable applicants who apply for a position, the Governor may choose one.

But the constitution requires that this individual run in the next general election after 12 months of service on the bench in a retention election.

We, under our law, under an interpretation placed on that since 1973, find under State law that is an elective office.

It has not lost its nature as an elective office by virtue of the change in the selection process.

David H. Souter:

The problem is the word “elected to office”.

Isn’t that where you get into trouble?

He isn’t to it.

He was appointed to it, and the election goes to retention.

James B. Deutsch:

That’s correct, and that was… in a short footnote, the disposition made of it by the U.S. district court was that these are not elected to office.

These judges are appointed to office and then elected.

I would suggest that that is an entirely too crabbed an interpretation of the provision.

It makes really very little sense.

What the court would seem to be saying, then, is that Judge Makanie, who at one time was in this case, is also an appointed judge.

Judge… or excuse me, Governor Herns appointed him to office and then he later ran for the vacancy.

Most of our judges are appointed by the Governor because of the movement within the judiciary through promotions and retirements, and most of the officials would always be appointed judges if this is the case.

Byron R. White:

But the… but even these judges who are appointed initially, their terms expire and in order to have a subsequent term they have to be voted on.

James B. Deutsch:

That’s correct.

They are answerable to the voters.

And I think this is probably the crucial element.

To finish up the answer to my question, I believe that the proper construction to be placed upon the elected officials’ exemption is that it should be elected to an elective office.

The fact that an office is appointed, you will never answer to the voters if it is an appointed office.

James B. Deutsch:

However, if you do answer to the voters, I believe the proper construction of that term is that it is an elective office, and the fact that you may be appointed to it is irrelevant to the nature of the office, and that is in fact what our State law seems to hold.

Byron R. White:

Why would it… why would the State… why would your State have an occasion to decide that question?

James B. Deutsch:

We had a request for an attorney general’s opinion back in 1973.

Byron R. White:

Why?

James B. Deutsch:

Pardon me?

Byron R. White:

Why?

What… with–

James B. Deutsch:

Because the… our constitution prohibits a member of the general assembly from succeeding to an appointed–

Byron R. White:

–I see.

James B. Deutsch:

–office for which he raised the emoluments, and that occurred.

We ruled, however, that the legislator may be appointed to office because this is an elective office under State law.

So our law in the State, which we respectfully urge that deference be given to, does make this an elective office.

And as I was beginning to get back to your point, Justice White, the thing to understand about the Missouri system is that it is essentially a bit of a bargain between the members of the judiciary and the public.

The members of the public want the highest caliber, highest quality judiciary they can find.

We have found in our State that elections often do not provide the highest caliber lawyers, the highest caliber officials that we are looking for.

We have found that appointment works to that end.

However, what we have done is create a very tough selection process, very hard to get in.

Certainly political credentials will not always serve you well.

And we have granted essentially super-incumbency.

The judge who is appointed serves an enormously long time, particularly on the court of appeals.

12 years for our court of appeals judges, 6 years for our circuit judges.

They are given the benefit of super-incumbency because they run against no opponent.

They run for retention.

They run against themselves.

It is true that no one has ever not been retained.

That’s, I think, a matter of pride in the State of Missouri, because we do take pride in our judiciary.

But at the end of the term there is a price to be paid.

And that is the price that the voters of Missouri in 1970 enacted overwhelmingly, and I think based upon experience in the State of Missouri, that a mandatory retirement age guarantees that the benefits of this super-incumbency will not carry on forever, that it will end, and that the benefits of being able to move new people into the system, into the judiciary, will be obtained through an orderly attrition created by mandatory retirement.

John Paul Stevens:

May I ask you a question about the policy-making point, going back to the earlier argument?

James B. Deutsch:

Certainly.

John Paul Stevens:

I understand your argument about changing sovereign immunity and major changes in the law that are worked by the supreme court of the State.

But the average trial judge, most of these 141 judges are not members of the supreme court and do not independently change the policy on sovereign immunity.

How do you… how do you describe the average trial judge as being a policy maker?

James B. Deutsch:

I think any criminal defendant that has ever stood in front of one of our trial judges for sentencing probably regards him as a policy maker.

I think that is probably one example of where, if there were a policy-making function and you had to figure out what was for the good of the community, what the common and accepted principles of penology would have to say about the sentence you were about to mete out, all of the things that go into a determination of an exercise–

John Paul Stevens:

Well supposing… I don’t know, maybe you don’t have something like our sentencing guidelines in the Federal system.

They were rather specific sentences required to be imposed.

Is that the only kind of policy the… I mean, is there any other area in which you say the trial judge makes policy other than sentencing?

James B. Deutsch:

–Well, of course they participate in the policy-making judgments for the judicial branch through their budget, and so forth.

But I would note also, Your Honor, that in the policy-making exemption it not only says policy-making level, which is an institutional rather than functional approach, but I don’t find anything in the legislative history or the statute that says that you make policy all the time, or you make it half the time, or you make it once in a while.

I think that an understanding of–

John Paul Stevens:

What is the lowest level of jurisdiction that the judges covered in this category have?

Do you have municipal court judges?

James B. Deutsch:

–Associate circuit judge.

Municipal judges are excluded from the Plan.

John Paul Stevens:

Associate circuit.

What sort of jurisdiction do they have?

What kind of policy do they make?

James B. Deutsch:

They have, I believe it’s a $15,000 dollar limit.

John Paul Stevens:

Do they have criminal court jurisdiction?

James B. Deutsch:

They have criminal court jurisdiction.

They do a lot of the DWI’s.

They sentence a lot of the defendants.

Additionally in our State–

John Paul Stevens:

Felony?

Do they have felony jurisdiction?

James B. Deutsch:

–Yes… well, particularly because in our State depending upon the circuit and its caseload the presiding judge may appoint an associate circuit judge to sit as a circuit judge.

That happens quite frequently, particularly in the rural areas of the State, because although in a circuit there may be only one circuit judge for several counties, each county is constitutionally entitled to one associate circuit judge, and that is their judge.

He is the highest ranking judicial official in that county most of the time.

John Paul Stevens:

And it is a full time job for them?

James B. Deutsch:

It certainly is.

And it is prohibited to practice law while holding it.

David H. Souter:

Mr. Deutsch, with respect to the associate circuit judges, they have $15,000 civil jurisdiction?

Is that right?

James B. Deutsch:

I believe that’s the number.

It, they keep raising it.

David H. Souter:

Well, within that jurisdiction they could be asked to recognize a new common law cause of action, couldn’t they?

James B. Deutsch:

Oh, certainly.

Certainly.

They have–

David H. Souter:

And if requested they would have the option to do so, subject to appeal, wouldn’t they?

James B. Deutsch:

–That’s correct.

And I think that’s another thing that has been brought up in those decisions such as EEOC v. Vermont, that judges can always be appealed.

Well, judges can only be appealed if the lawyers take it upon themselves to do it.

I think that is unlike the executive branch in many regards, and most particularly, not everybody in the executive branch is appointed by the Governor and has to run for retention election or run in a partisan election.

These judges at every level are real judges.

They do have the power, the judicial power of the State of Missouri.

We regard them as important.

We regard them as State officials of some magnitude.

And we believe that the Congress indicated, in its use of terms in the appointed official exemption, that it understood that and put them into a group of appointed officials in the policy-making level who were to be exempt from the ADEA.

Finally I will just touch briefly upon the constitutional question, the equal protection matter.

I don’t think that the Court needs to take a great deal of time to struggle with the Cleburne case.

I think that case is clearly understandable.

In Cleburne the situation there presented no rational basis upon which to sustain the law at issue, and in this case I believe that we have.

And I would point out that there are several rational bases.

But for purposes of the case let me just suggest that the most important of those rational bases is the availability of the resources that this orderly attrition creates for our chief justice to make the work of the judiciary go forward, the fact that we get to move, by that attrition, younger members of the profession into our legal… into our judiciary, and most importantly the fact that we are able to correct–

John Paul Stevens:

On that argument I guess you could justify a 50-year retirement age, couldn’t you?

James B. Deutsch:

–I think we probably could.

I don’t see where we would want to.

John Paul Stevens:

35?

John Paul Stevens:

How about–

James B. Deutsch:

Most of the judges–

John Paul Stevens:

–You could justify a 35-year retirement.

James B. Deutsch:

–I don’t think so, Your Honor.

John Paul Stevens:

Why not?

You’d move them along a little faster.

[Laughter]

James B. Deutsch:

Well, that might be a little too fast.

Most of–

Byron R. White:

Well, you certainly could say that judges could only serve one term.

James B. Deutsch:

–We have… term limitation is one of the fears that we have that come out of this case if the petitioners are agreed to.

We kind of like the terms that our judges have now.

They are nice and long, and they have that super-incumbency that helps them out a great deal so they’re not always out campaigning and raising money and–

Byron R. White:

But you could say judges, whether they are elected or appointed, can only serve one term.

James B. Deutsch:

–We could… we could do that constitutionally, and I don’t think that the ADEA would certainly prohibit it.

We already have a term limitation on our Governor of two terms, and–

John Paul Stevens:

Because that would not be discrimination on account of age.

James B. Deutsch:

–I would hope not.

John Paul Stevens:

Right.

James B. Deutsch:

To conclude with what I was saying before, the main feature that I think that comes out of the Missouri Plan, at least in the last 20 years since the mandatory retirement age has been in effect, is the fact that we have done a very good job, I think, of being able to promote more women, more minorities, into the judiciary, a place where it was lacking in the past.

We have had under this very defendant, the first supreme court, female supreme court justice in the State’s history, the first appellate court female member in the State’s history, many minority and female members of the courts throughout the State–

John Paul Stevens:

If your 70-year-old age limit causes this turnover, you’ve had that a long time.

Why did it take so long to get a female judge?

James B. Deutsch:

–I believe that perhaps some of the predecessors were not trying hard enough, Your Honor.

Antonin Scalia:

Mr. Deutsch, was the… do you know whether the ADEA was based exclusively on the Commerce Clause, or was it also based on the Fourteenth Amendment?

James B. Deutsch:

Well, the only thing that jumps out at me is that in the statement of purposes it says that a finding that the age discrimination in employment is a burden on interstate commerce.

I don’t find anything that is that clear of a statement concerning the Fourteenth Amendment, and therefore I would conclude, as some courts have, that the Commerce Clause is the basis upon which the ADEA was enacted.

I think that perhaps with the disposition of this Court’s rulings between National League of Cities and the Garcia case, I have noticed a decline in the number of times that that finding has been necessary to be made.

I think it was probably an issue when it was thought important to avoid the reach of National League of Cities in order to not have the ADEA declared unconstitutional.

But since 1983, in particular with EEOC v. Wyoming, it does not seem to be a very necessary feature to declare it to be under the Fourteenth Amendment at this time.

James B. Deutsch:

In conclusion, then, Your Honors, I would suggest that Missouri and the Missouri Plan are a model for appellate and trial court merit judicial selection.

It has been widely emulated.

It is something that we cannot for the life of us see why the Federal Government should want to become involved in.

We do not see one word having been spoken by Congress indicating an intent to become in the selection–

Thurgood Marshall:

Can we decide this case in your favor without saying that the Missouri Plan is great?

[Laughter]

James B. Deutsch:

–I would prefer, of course, that you say that, Your Honor, but I think we would accept that conclusion without those precise terms.

If there are no further questions, thank you.

William H. Rehnquist:

Thank you, Mr. Deutsch.

Mr. Shoemake, do you have rebuttal?

You have 2 minutes remaining.

Jim J. Shoemake:

Thank you, Mr. Chief Justice.

With regard to the question of whether or not the appointed judges when they stand for retention are elected to office, the Missouri constitution provides that, except as otherwise provided in this subchapter, all candidates for elective office shall be nominated at a primary election.

And these appointed judges do not do that.

They do not run in a primary election.

That is the constitutional requirement.

All candidates for elective office shall be nominated at primary–

David H. Souter:

How is that significant in determining what Congress meant, though?

Jim J. Shoemake:

–I think it’s significant in that… it’s not… it goes to the issue of whether or not these appointed judges are elective and hence exempt from the coverage under the ADEA.

David H. Souter:

I mean, it shows they don’t fall into sort of one paradigm for the selection of people to run for office, but that’s as far as it goes.

Jim J. Shoemake:

Well, Justice Souter, I submit it goes a little farther in that it shows that those who have… how they’re dressed as elected officials, these appointed judges do not wear that clothing.

They are different.

They are retained in office.

With regard to the interpretation, finally, that Congress did not exclude or include judges, that is true.

What the Congress did was to say that the statute shall be construed broadly, and that any exemptions shall be construed narrowly.

And finally, the–

Antonin Scalia:

Where is that?

Jim J. Shoemake:

–That’s in the conference report relating to–

Antonin Scalia:

Oh.

The conference committee said that.

Antonin Scalia:

I thought–

Jim J. Shoemake:

–No, it is not in the statute, Justice Scalia.

And finally, the Age Discrimination Act in its introductory remarks talks about the… the arbitrary discrimination on age.

That’s what it’s designed to rectify.

And we submit that these judges in Missouri are being arbitrarily discriminated against simply because they are 70 years of age.

No further questions.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Shoemake.

The case is submitted.