Did the 1986 elimination of mandatory retirement ages under federal age discrimination law mean Maryland judges no longer had to retire at 70?

Plain-English summary

The State Court Administrator asked whether a 1986 amendment to the federal Age Discrimination in Employment Act, which eliminated the law's upper age cap effective January 1, 1987, meant Maryland's judges no longer had to retire at 70 as the state constitution required. The answer depended on whether each type of judge counted as an "employee" protected by the federal law or fell within its exception for people "elected to public office."

The Attorney General split the answer by how each kind of judge reached the bench. District Court judges, who are appointed by the Governor and never stand for any election, counted as protected employees and were freed from mandatory retirement at 70. Circuit court judges, who run in direct competitive elections (even when first appointed to fill a vacancy, they must promptly stand for election), fell within the elected-official exception and remained bound by the constitutional retirement age. Appellate judges presented a closer call because they are initially appointed and then face only a noncompetitive up-or-down "election for continuance," but the opinion concluded that this retention vote still counted as an election, so appellate judges also remained subject to mandatory retirement at 70.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

After the 1986 change to federal age discrimination law, could a Maryland District Court judge keep working past age 70?
Yes, according to this opinion. The Attorney General concluded that District Court judges, who are appointed rather than elected, were protected "employees" under the amended Act and were no longer subject to the constitutional mandatory retirement age of 70.

Did the same protection apply to Maryland circuit court judges, who do run for election?
No. The opinion concluded that circuit court judges fell within the Act's exception for people "elected to public office," since they run in competitive elections (or must promptly do so after a gubernatorial appointment to fill a vacancy), so they remained subject to mandatory retirement at 70.

What about Court of Appeals and Court of Special Appeals judges, who are appointed and then just face a yes-or-no retention vote rather than a competitive race?
The opinion concluded that even a noncompetitive "election for continuance," where voters simply approve or reject a sitting judge, still counted as an election for purposes of the federal law's elected-official exception, so appellate judges also remained subject to mandatory retirement at 70.

Background and statutory framework

The Maryland Constitution required judges of the Court of Appeals, Court of Special Appeals, circuit courts, and the District Court to retire upon reaching age 70. Under the Supremacy Clause, those provisions had to yield to the extent they conflicted with the federal Age Discrimination in Employment Act, which as amended effective January 1, 1987 prohibited age discrimination against employees without any upper age cap. The Act's definition of "employee," carried over unchanged from the definition in Title VII, excluded anyone "elected to public office ... by the qualified voters" and certain policymaking appointees, so a judge's protection under the Act turned entirely on whether that judge's path to the bench counted as an "election."

The opinion worked through each type of judge's selection method under the Maryland Constitution: District Court judges are appointed by the Governor with Senate confirmation and never face any election, so they had no basis to be treated as elected officials. Circuit court judges are directly elected to 15-year terms by the voters of their jurisdiction, and even judges initially appointed to fill a vacancy must stand for election at the next general election held more than a year after the vacancy, so they squarely fit the elected-official exception. Appellate judges present a hybrid: initially appointed, then subject to a noncompetitive "election for continuance" in which voters simply vote yes or no on retention, with rejection creating a vacancy. The opinion concluded that the constitutional text's own repeated use of the word "election" for this retention process, together with the electorate's ultimate power to remove an appellate judge, meant this retention vote counted as an election under the federal exception, keeping appellate judges subject to mandatory retirement.

Citations

Statutes:

• Article IV, §5A(f), §3, and §41D of the Maryland Constitution (mandatory retirement age of 70 for appellate, circuit, and District Court judges)
• Article IV, §5 of the Maryland Constitution (circuit court vacancy appointment and subsequent election timing)
• Article IV, §5A, §5A(b), (c), (d), and (e) of the Maryland Constitution (appellate judge appointment and "election for continuance")
• Article IV, §11 of the Maryland Constitution (certification of judicial elections to the Governor)
• Former Article IV, §14 of the Maryland Constitution (prior direct election method for appellate judges)
• U.S. Const. art. VI, cl. 2 (Supremacy Clause)
• 29 U.S.C. §621(b) and §623(a) (ADEA purpose and core prohibition)
• 29 U.S.C. §630(b) and (f) (definitions of "employer" and "employee," including the elected-official exception)
• 29 U.S.C. §631(a) (upper age limit, eliminated by the 1986 amendment)
• 42 U.S.C. §2000e(f) (Title VII's identical "employee" definition, used to interpret the ADEA)
• Age Discrimination in Employment Act Amendments of 1978, Pub. L. No. 95-256 (raised cap to 70)
• Age Discrimination in Employment Amendments of 1986, Pub. L. No. 99-592 (eliminated the upper age cap)

Cases:

• Michael v. Majority of Board of Trustees of New York City Emp. Retirement System, 437 N.Y.S.2d 977, 980 (App. Div. 1981)
• EEOC v. Wyoming, 460 U.S. 226, 243 (1983)
• Lorillard v. Pons, 434 U.S. 575, 584 (1978)
• EEOC v. Reno, 758 F.2d 581, 584-85 (11th Cir. 1985)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

JUDGES

Retirement—Age Discrimination—Under Recently Amended Federal Law, District Court Judges Are No Longer Subject To Mandatory Retirement At Age 70, But Circuit Court And Appellate Judges Remain Subject To Mandatory Retirement.

December 29, 1986

Mr. James H. Norris, Jr.
State Court Administrator

You have requested our opinion concerning the effect on Maryland's judiciary of a recent amendment to the federal Age Discrimination in Employment Act ("Act" or "ADEA"). The amendment extends the Act's protections to persons 70 years of age and older. Specifically, you have asked whether, in light of the newly amended Act, the judges of the District Court, the circuit courts, and the appellate courts remain subject to mandatory retirement at age 70, as provided in the Maryland Constitution.

For the reasons stated below, we conclude as follows:

1. District Court judges are covered by the Act and may no longer be required to retire at age 70.

2. Circuit court judges and appellate court judges fall within an exception to the Act and, therefore, remain subject to the constitutional requirement that they retire at age 70.

I
Mandatory Retirement of Judges

The Maryland Constitution provides that a judge of the Court of Appeals or Court of Special Appeals "shall retire when he attains his seventieth birthday." Article IV, §5A(f). A circuit court judge holds office "until he shall have attained the age of seventy years." Article IV, §3. Likewise, a District Court judge holds office "until he shall have attained the age of seventy years." Article IV, §41D.

Under the Supremacy Clause of the United States Constitution, these provisions may no longer be given effect if they conflict with the federal Act. U.S. Const. art. VI, cl. 2. See Michael v. Majority of Board of Trustees of New York City Emp. Retirement System, 437 N.Y.S.2d 977, 980 (App. Div. 1981), appeal dismissed, 434 N.E.2d 1082 (N.Y. 1982). Hence, we turn to the provisions of the ADEA.

II
Age Discrimination in Employment Act

A. Purpose and Scope

As we observed in a prior opinion, the ADEA "is designed both to promote the employment of older persons, based on ability rather than age, and to prohibit arbitrary age discrimination in employment." 69 Opinions of the Attorney General 150, 150 (1984). See 29 U.S.C. §621(b). The key substantive provision of the Act declares it to be unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's age"; or "to limit... his employees in any way which would deprive ... any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age...." 29 U.S.C. §623(a).

When originally enacted in 1967, the Act covered employees at least 40 years of age but less than 65. In 1978, Congress raised the maximum age to 70 for state, local, and private employees and eliminated the maximum entirely for federal workers. Age Discrimination in Employment Act Amendments of 1978, Pub. L. No. 95-256 §3(a), 92 Stat. 189 (1978).

Thus, prior to its recent amendment, the ADEA prohibited virtually all employers from discriminating on the basis of age against employees who were at least 40 years of age but less than 70, for example, by requiring them to retire before attaining the age of 70. See 29 U.S.C. §§623(a) and 631(a).

B. 1986 Amendment

The newly enacted amendment to the ADEA, effective on January 1, 1987, removes the maximum age cap entirely. Age Discrimination in Employment Amendments of 1986, Pub. L. No. 99-592, §2(c)(1)(2), 100 Stat. (1986). The purpose of the amendment is straightforward, "to eliminate mandatory retirement by striking all references to upper age limitations." H.R. Rep. No. 99-756, 99th Cong., 2d Sess. 8 (1986), reprinted in 1986 U.S. Code Cong. & Adm. News 5634. As amended, 29 U.S.C. §631(a) will read: "The prohibitions of this chapter shall be limited to individuals who are at least 40 years of age." Hereafter, protected employees will be assured of the right to continue employment past age 70 until voluntary departure or termination for cause.1

C. Exceptions

The definitional section of the ADEA, 29 U.S.C. §630, which was not changed by the 1986 amendment, defines "employer" to include state and local governments [§630(b)] and "employee" to include an individual employed by an employer [§630(f)].2 Thus, every state employee is protected by the provisions of the Act unless that employee falls within one of the enumerated exceptions to the definition of "employee". In relevant part, "employee" is defined as follows:

"The term 'employee' means an individual employed by any employer except that the term employee shall not include any person elected to public office in any State or political subdivision 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 policymaking level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office." (Emphasis added.)

Every judge of the District Court, the circuit courts, the Court of Special Appeals, and the Court of Appeals is "an individual employed by [an] employer", i.e., the State of Maryland.3 Therefore, as an "employee," a judge is protected by the Act, and not subject to mandatory retirement at age 70, unless he or she is "elected to public office ... by the ... voters."4

III
Application of Amended ADEA to Judges

A. District Court Judges

Under Article IV, §41D of the Constitution, District Court judges are appointed by the Governor and confirmed by the Senate.5 At no time does a District Court judge stand for any form of election.

Because District Court judges are not elected public officials, they are not exempted from the definition of "employee" in 29 U.S.C. §630(f). Accordingly, District Court judges are protected by the Act and may no longer be required to retire at age 70.

B. Circuit Court Judges

Circuit court judges initially gain office in one of two ways, direct election or gubernatorial appointment. Under Article IV, §3 of the Constitution, circuit court judges are elected by the voters of their respective jurisdictions to 15-year terms.6 Any qualified person may run for an open seat on a circuit court bench.

More commonly, circuit court judges first take office when appointed by the Governor to fill a vacancy pursuant to Article IV, §5. But these appointees are themselves required to stand for election promptly after their appointment, generally, at the first election occurring more than a year after the vacancy.7 All circuit court judges, therefore, are "elected to public office," within the meaning of that phrase in 29 U.S.C. §630(f). Accordingly, circuit court judges fall within the exception to the Act's coverage and must continue to retire at age 70, pursuant to Article IV, §3.

C. Appellate Judges

Article IV, §5A provides for the appointment, term of office, election for continuance, and retirement of judges of the Court of Appeals and Court of Special Appeals. Appellate judges are initially appointed by the Governor and are subject to an election for continuance, that is, "approval or rejection" by the voters, after a year in office and at the end of each successive term.8 While appellate judges are not subject to competitive elections, as are circuit court judges, we are of the opinion that the noncompetitive election for continuance is, nevertheless, an election. Thus, appellate judges fall within the ADEA's exception for elected public officials and must continue to retire pursuant to the constitutional mandate at age 70.9

The pertinent constitutional provisions expressly term the process an "election." When a vacancy occurs, the Governor appoints someone to hold office "until the election for continuance." Article IV, §5A(b). The election for continuance, after the expiration of a year in office, subjects the appellate judge to the approval or rejection of "the registered voters," who "vote for the judge's retention in office ... or his removal." Article IV, §5A(e). If the voters "reject the retention" of the judge, the office is deemed vacant 10 days "after the certification of the election returns." Id. Likewise, Article IV, §11, applicable to appellate and circuit court judges alike, provides that "[t]he election for Judges ... shall be certified ... to the Governor, who shall issue commissions to the different persons for the office to which they shall have been respectively elected...."

We acknowledge that the selection process of an appellate court judge, appointment followed by an election for continuance, is a hybrid between the competitive election of a circuit court judge and the direct appointment of a District Court judge. Nonetheless, the process does entail an election. The crux of the matter is that the electorate has the ultimate power, through the election for continuance, to decide if an appellate judge will remain in office.10

IV
Conclusion

In summary, we conclude as follows:

1. District Court judges are covered by the Act and may no longer be required to retire at age 70.

2. Circuit court judges and appellate court judges fall within an exception to the Act and, therefore, remain subject to the constitutional requirement that they retire at age 70.11

Stephen H. Sachs
Attorney General
James G. Klair
Assistant Attorney General
Susan Whiteford
Staff Attorney

Jack Schwartz
Chief Counsel
Opinions and Advice

1 Special temporary exceptions have been made for public safety officers (police, firefighters, and prison guards) and tenured academic faculty, providing for a seven year study period to evaluate the consequences of the elimination of mandatory retirement for these groups. See Public Law 99-592, §§3, 5, and 6.

2 The ADEA's application to the states is a valid exercise of Congress' powers under the Commerce Clause and does not violate the Tenth Amendment. EEOC v. Wyoming, 460 U.S. 226, 243 (1983).

3 A judge is, of course, a public officer. But the ADEA's definition of "employee" generally includes public officers; were it otherwise, the exception for elected public officers would be unnecessary.

4 We are constrained to conclude that judges are not "appointee[s] on the policymaking level," within the meaning of that additional exception to the Act's definition of "employee." The term "policymaking level" is not expressly defined in the ADEA or its legislative history. However, the definition of "employee" in Title VII, 42 U.S.C. §2000e(f), is identical to the ADEA definition. Because the Supreme Court has observed that the "prohibitions of the ADEA were derived in haec verba from Title VII," Lorillard v. Pons, 434 U.S. 575, 584 (1978), constructions of the "policymaking level" exception in Title VII are highly relevant to a determination of the scope of the identical exception in the ADEA. The legislative history of Title VII demonstrates that Congress intended the "policymaking level" exception to apply only to cabinet officers and similar political appointees in the Executive Branch. H. Conf. Rep. No. 92-899, 92d Cong., 2d Sess. (1972); S. Conf. Rep. No. 92-681, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S. Code Cong. & Adm. News 2179, 2180. This exception "shall be construed narrowly." Id. The EEOC, the agency principally responsible for the enforcement of Title VII, has characterized Congress' intent as follows: "In exempting policymaking appointees, Congress realized the necessity of allowing elected officials complete freedom in appointing those who would direct state and local departments and agencies. These individuals must work closely with elected officials and their advisors in developing policies that will implement the overall goals of the elected officials. In order to achieve these goals, an elected official is likely to prefer individuals with similar political and ideological outlooks. Congress intended to allow elected officials the freedom to appoint those with whom they feel they can work best." EEOC Decision No. 78-42, Empl. Prac. EEOC Dec. (CCH) ¶6725 (Sept. 29, 1978). See also EEOC Decision No. 79-08, Empl. Prac. EEOC Dec. (CCH) ¶6739 (Oct. 20, 1978).

5 Article IV, §41D provides as follows: "The Governor, by and with the advice and consent of the Senate, shall appoint each judge of the District Court whenever for any reason a vacancy shall exist in the office.... Each judge appointed by the Governor and confirmed by the Senate shall hold the office for a term of ten years or until he shall have attained the age of seventy years, whichever may first occur. If the ten year term of a judge shall expire before that judge shall have attained the age of seventy years, that judge shall be reappointed by the Governor, with the Senate's consent, for another ten year term or until he shall have attained the age of seventy years, whichever may first occur."

6 Article IV, §3 provides that: "[T]he Judges of the several [circuit] Courts ... shall, subject to the provisions of Section 5 of this Article of the Constitution, be elected in Baltimore City and in each county, by the qualified voters of the city and of each county, respectively, all of the said Judges to be elected at the general election to be held on the Tuesday after the first Monday in November, as now provided for in the Constitution. Each of the said Judges shall hold his office for the term of fifteen years from the time of his election, and until his successor is elected and qualified, or until he shall have attained the age of seventy years, whichever may first happen, and be reeligible thereto until he shall have attained the age of seventy years, and not after."

7 The exact timing of the election is specified in Article IV, §5: "Upon every occurrence or recurrence of a vacancy through death, resignation, removal, disqualification by reason of age or otherwise, or expiration of the term of fifteen years of any judge of a circuit court, or creation of the office of any such judge, or in any other way, the Governor shall appoint a person duly qualified to fill said office, who shall hold the same until the election and qualification of his successor. His successor shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years (if the vacancy occurred in that way) or the first such general election after one year after the occurrence of the vacancy in any other way than through expiration of such term. Except in case of reappointment of a judge upon expiration of his term of fifteen years, no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed time when his successor would have been elected."

8 Article IV, §5A provides that: "(b) Upon the occurrence of a vacancy the Governor shall appoint, by and with the advice and consent of the Senate, a person duly qualified to fill said office who shall hold the same until the election for continuance in office as provided in subsections (c) and (d). (c) The continuance in office of a judge of the Court of Appeals is subject to approval or rejection by the registered voters of the appellate judicial circuit from which he was appointed at the next general election following the expiration of one year from the date of the occurrence of the vacancy which he was appointed to fill, and at the general election next occurring every ten years thereafter. (d) The continuance in office of a judge of the Court of Special Appeals is subject to approval or rejection by the registered voters of the geographical area prescribed by law at the next general election following the expiration of one year from the date of the occurrence of the vacancy which he was appointed to fill, and at the general election next occurring every ten years thereafter. (e) The approval or rejection by the registered voters of a judge as provided for in subsections (c) and (d) shall be a vote for the judge's retention in office for a term of ten years or his removal. The judge's name shall be on the appropriate ballot, without opposition, and the voters shall vote yes or no for his retention in office. If the voters reject the retention in office of a judge, or if the vote is tied, the office becomes vacant ten days after certification of the election returns."

9 The applicability of the exception is ultimately a question of federal, not State, law. However, in the absence of pertinent legislative history for the ADEA or Title VII, Maryland law provides the only guidance available in determining whether appellate judges are "elected." Cf. EEOC v. Reno, 758 F.2d 581, 584-85 (11th Cir. 1985).

10 The recent history of the election process for appellate judges supports our conclusion that appellate judges are properly viewed as elected officials. The current provision for filling an appellate court vacancy, Article IV, §5A, was ratified by the voters on November 2, 1976. Prior to that time, appellate judges were elected by the qualified voters of their respective appellate judicial circuits. See former Article IV, §14. However, in 1974, two years before the enactment of the present "election for continuance" provision, the General Assembly was presented with, and rejected, a bill that would have made appellate judges purely appointed officials, entirely eliminating the need for any election after the initial appointment. See House Bill 893 and Senate Bill 585 (1974 Session). See also Final Report of the Commission on Judicial Reform to the Governor and General Assembly of Maryland (December 31, 1974). In rejecting the concept of appointed appellate judges, the General Assembly evidently concluded that Maryland voters would be unwilling to relinquish their ultimate electoral power to retain an appellate judge or to remove one in whom, for one reason or another, they no longer had confidence.

11 The distinction between elected and appointed judges, for purposes of mandatory retirement, arguably gives rise to equal protection concerns. Nevertheless, we certainly cannot conclude, in the abstract, that this distinction, compelled by the interaction of federal and State law, lacks any rational basis.