Does Maryland's rule forcing circuit court masters to retire at age 70 violate the federal Age Discrimination in Employment Act?

Plain-English summary

Maryland's State Court Administrator, at Chief Judge Murphy's request, asked the Attorney General whether Maryland Rule 2-541's requirement that a standing master retire at age 70 could still be enforced in light of the federal Age Discrimination in Employment Act (ADEA). The question arose because the U.S. Supreme Court had just decided Gregory v. Ashcroft, holding that Missouri's mandatory retirement age for judges did not violate the ADEA because judges qualified as exempt "appointees on the policymaking level."

The opinion concluded that masters were different from judges in exactly the respect that mattered. Under Maryland case law, including Matter of Anderson and Swisher v. Brady, a master holds none of the state's judicial power: a master hears evidence and makes recommended findings and conclusions, but only a judge can enter a binding judgment, and either party can file exceptions to a master's recommendation before the judge makes the final decision. Because the ADEA's "policymaker" and "immediate advisor" exceptions were meant to be read narrowly, and because masters exercised minimal discretion and had no meaningful role in setting policy for the judiciary (unlike judges, who "make policy" by filling gaps in the law), the opinion concluded masters did not qualify for either exception. It also addressed a related wrinkle in the Judicial Pension Plan, which cut off retirement contributions at age 70 or 16 years of service: relying on a 1988 ADEA amendment barring age-based cutoffs in defined-benefit pension accrual, the opinion concluded that masters and workers' compensation commissioners had to be allowed to accrue up to 16 years of pension service even if some of those years came after age 70, effectively overruling how a Maryland court had read the pension rule in Cohen v. Goldstein a few years earlier.

Currency note

This opinion was issued in 1991. 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 the current text of Maryland Rule 2-541, the ADEA and its 1986 pension-accrual amendment, and any later case law refining the "policymaker" and "immediate advisor" exceptions before relying on any specific rule described here.

Common questions

Could Maryland force a circuit court master to retire at age 70 back in 1991?
No. The opinion concluded that Rule 2-541's mandatory retirement provision for standing masters conflicted with the ADEA and should not be enforced, because masters did not fall within any exception that would let a state impose an age-based retirement rule on them.

Why were judges treated differently from masters under the ADEA?
Because the U.S. Supreme Court had just held in Gregory v. Ashcroft that judges qualify as exempt "appointees on the policymaking level," a status the opinion found masters lacked, since masters exercise none of the state's judicial power and can only recommend, not decide, a case; a judge must still enter the final, binding judgment.

Did the Judicial Pension Plan's age-70 cutoff on retirement contributions also apply to masters?
The opinion concluded that a 1988 ADEA pension amendment required the plan to let masters and workers' compensation commissioners accrue up to 16 years of contributions even if part of that time occurred after age 70, contrary to how a Maryland court had read the plan a few years earlier in Cohen v. Goldstein.

Background and statutory framework

Maryland Rule 2-541(a)(1) barred anyone from serving as a standing master past age 70. The ADEA, 29 U.S.C. §623(a)(1), makes it unlawful for an employer, defined under 29 U.S.C. §630(b) to include state and local governments, to discriminate against an employee because of age, but 29 U.S.C. §630(f) excludes from the definition of "employee" elected officials, their personal staff, and "an appointee on the policymaking level or an immediate advisor" to the exercise of the office's powers. In Gregory v. Ashcroft, the Supreme Court applied a "plain statement" federalism rule to hold that appointed judges fell within the policymaker exception, reasoning that the phrase covers appointees exercising discretion over issues of public importance, not just officials who literally "make policy." Maryland case law, however, sharply distinguishes a master's role from a judge's: under Matter of Anderson and Swisher v. Brady, masters are "ministerial" rather than judicial officers, entrusted with none of the state's judicial power, including the power to enter a binding judgment; masters instead hear evidence and file recommendations subject to exceptions and final adjudication by a judge under Rule 2-541(c).

On the pension question, the Judicial Pension Plan under Article 73B, §§55(o) and 57(f) cut off contributions at age 70 or after 16 years of creditable service, and §55(h) extended "judge" status under the Plan to workers' compensation commissioners and full-time masters. A 1986 ADEA amendment (Public Law No. 99-509), effective in 1988, added 29 U.S.C. §623(i), barring age-based cessation of benefit accrual in a defined benefit pension plan while still permitting a neutral cap on years of service, which the opinion found required allowing masters to accumulate their full 16 years of creditable service even past age 70.

Citations and references

Statutes:

• Maryland Rule 2-541, governing appointment, duties, and mandatory retirement of standing masters
• Maryland Rule 2-541(a)(1), the age-70 mandatory retirement provision for standing masters
• Rule 2-541(b), describing the categories of matters a master may hear
• Rule 2-541(a)(3), providing that masters serve at the pleasure of the appointing court
• Rule 2-541(c), describing masters' authority to conduct hearings and make findings and recommendations
• 29 U.S.C. §623(a)(1), the ADEA's core prohibition on age discrimination in employment
• 29 U.S.C. §630, the ADEA's definitional section
• 29 U.S.C. §630(b), defining "employer" to include state and local governments
• 29 U.S.C. §630(f), defining "employee" and its exceptions for elected officials, personal staff, and policymaking appointees or immediate advisors
• Public Law No. 99-592, §2(c)(1)(2), 100 Stat. 3342 (1986), the 1986 amendment removing the ADEA's upper age cap
• 42 U.S.C. §2000e(f), Title VII's identically worded "employee" definition used to interpret the ADEA's policymaker exception
• Article 73B, §§55(o) and 57(f) of the Maryland Code, the Judicial Pension Plan's age/service contribution cutoff
• Article 73B, §55(h), extending "judge" status under the Pension Plan to workers' compensation commissioners and certain masters
• Article 65, §88, governing military service credit under the Pension Plan
• Public Law No. 99-509, 100 Stat. 1973, the 1986 ADEA pension-accrual amendment (effective 1988)
• 29 U.S.C. §623(i), barring age-based cessation of defined-benefit pension accrual, subject to neutral service-year limits
• 29 U.S.C. §1002(35), ERISA's definition of "defined benefit plan"
• 29 U.S.C. §623(j)(9)(A), incorporating the ERISA "defined benefit plan" definition into the ADEA
• 29 U.S.C. §1002(34), ERISA's definition of "individual account plan"
• 18:13 Md. Reg. 1477 (June 28, 1991), the recent amendment to Rule 2-541 referenced in the opinion
• 7:21 Md. Reg. 1975 (Oct. 17, 1980), the original 1980 grandfather clause adopting the master retirement-age rule

Cases:

• Gregory v. Ashcroft, 111 S. Ct. 2395 (1991), holding appointed state judges are exempt "appointees on the policymaking level" under the ADEA
• Gregory v. Ashcroft, 898 F.2d 598, 604 (8th Cir. 1990), the lower court decision affirmed by the Supreme Court
• Lorillard v. Pons, 434 U.S. 575, 584 (1978), on the ADEA's prohibitions being derived "in haec verba" from Title VII
• Stillians v. Ohio, 843 F.2d 276 (8th Cir. 1988), setting out factors for the "policymaking level" exception
• EEOC v. Board of Trustees of Wayne Co. Community College, 723 F.2d 509, 511 (6th Cir. 1983), applying the policymaker exception to a community college president
• Matter of Anderson, 272 Md. 85, 321 A.2d 516, appeal dismissed 419 U.S. 809 (1974), holding Maryland masters exercise none of the state's judicial power
• Cohen v. Goldstein, 58 Md. App. 699, 474 A.2d 229 (1984), construing the Judicial Pension Plan's contribution cutoff as applied to a master
• Wenger v. Wenger, 42 Md. App. 596, 402 A.2d 94 (1979), further characterizing a master's ministerial role
• Swisher v. Brady, 438 U.S. 204, 208-09 (1978), the Supreme Court's summary of Maryland masters' limited, ministerial role
• EEOC v. Massachusetts, 858 F.2d 52, 55 (1st Cir. 1988), on judges "making policy" by filling gaps in the law
• Ingram v. Dallas County, 688 F. Supp. 1146 (N.D. Tex. 1988), on the personal-staff/immediate-advisor exception
• EEOC v. Reno, 758 F.2d 581 (11th Cir. 1985), same

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/1991/Volume76_1991.pdf (this opinion appears at printed pages 81-89 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

CIVIL RIGHTS AND DISCRIMINATION

Courts and Judges - Retirement Systems - Masters May Not
Be Required to Retire at Age 70

                         September 27, 1991

Mr. George B. Riggin, Jr.
State Court Administrator

 At the request of Chief Judge Murphy, we are providing you with

an opinion concerning the enforceability of the portion of Maryland Rule
2-541 that requires a standing master to retire at age 70. Specifically,
the question is whether this mandatory retirement provision violates the
federal Age Discrimination in Employment Act ("ADEA").

 For the reasons set forth below, we conclude that the mandatory

retirement provision of Rule 2-541 does conflict with the ADEA and
therefore should not be enforced.

                                    I

                             Background

 Maryland Rule 2-541(a)(1) provides as follows: "A majority of the

judges of the circuit court of a county may appoint a full-time or part-
time standing master and shall prescribe the compensation, fees, and
costs of the master. No person may serve as a standing master upon
reaching the age of 70 years." (Emphasis added.)

 As explained in Part IIB below, the Supreme Court recently held

that a state may specify a mandatory retirement age for judges without
violating the ADEA. Gregory v. Ashcroft, 111 S. Ct. 2395 (1991).1 In
light of this decision, the question is whether a circuit court master
would also be exempt from the ADEA's coverage.

 1
   Hence, this office's conclusion to the contrary with respect to District

Court judges in 71 Opinions of the Attorney General 181 (1986) is overruled.

                                II

          Age Discrimination in Employment Act

A. Purpose and Scope

 As two prior Attorney General's opinions observed, 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." 71 Opinions of the Attorney General 181, 182 (1986); 69
Opinions of the Attorney General 150 (1984). The ADEA provides that
"[i]t shall be unlawful for an employer to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age ...." 29 U.S.C.
§623(a)(1).

Prior to 1987, the ADEA applied to employees between the ages of

40 through 70. A 1986 amendment to the ADEA removed the
maximum age cap. Public Law No. 99-592, §2(c)(1)(2), 100 Stat. 3342
(1986).

 As this office's 1986 opinion pointed out, "[t]he definitional section

of the ADEA, 29 U.S.C. §630, ... defines 'employer' to include state
and local governments [§630(b)] and 'employee' to include an individual
employed by an employer [§630(f)]." 71 Opinions of the Attorney
General at 183. Therefore, every state or local government employee
is protected by the provisions of the ADEA unless that employee falls
within one of the specific 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.

29 U.S.C. §630(f) (emphasis added).

B. Gregory v. Ashcroft

In Gregory v. Ashcroft, 111 S. Ct. 2395 (1991), the Supreme Court

held that appointed judges in Missouri were "appointees on the
policymaking level."2 Hence, the ADEA did not protect those judges
against application of a provision of the Missouri Constitution that
required most judges to retire at age 70.

 In determining that Congress intended the ADEA to exempt state

judges, Justice O'Connor, writing for the majority, adopted a "plain
statement" rule designed to preserve a proper balance between federal
and state powers. That is, Justice O'Connor wrote, "[w]e will not read
the ADEA to cover state judges unless Congress has made it clear that
judges are included." 111 S. Ct. at 2404 (emphasis in original). Justice
O'Connor continued: "In the context of a statute that plainly excludes
most important state public officials, 'appointee on the policymaking
level' is sufficiently broad that we cannot conclude that the statute
plainly covers appointed state judges. Therefore, it does not." Id.
Thus, with little discussion about who qualifies as an "appointee on the
policymaking level," the Supreme Court concluded that judges fall under
the exception.

In order to understand how the Supreme Court reached this

conclusion, we examine briefly the history of the policymaker exception.
As the 1986 Attorney General's opinion noted:

            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.

71 Opinions of the Attorney General at 184 n.7.

 2
     For ease of reference we will refer to this as the "policymaker exception."

 The relevant legislative history concerning Title VII is as follows:

     [I]t is the intention of the conferees to exempt elected
     officials and members of their personal staff, and
     persons appointed by such elected officials as advisors
     or to policy making positions at highest levels of the
     departments or agencies of state or local governments,
     such as cabinet officers, and persons with comparable
     responsibilities at the local level. It is the conferees'
     intent that this exemption shall be construed narrowly.

Joint Explanatory Statement of Managers at the Conference on HR
1746, 92d Cong. 1st Sess., reprinted in 1972 U.S. Code Cong, and
Admin. News 2179-80.

Relying on this legislative history, the Missouri judges in Ashcroft

argued that the policymaker exception was meant to apply exclusively
to appointees within the executive and legislative branches of
government. The Supreme Court rejected this argument:

     The statute refers to appointees "on the policymaking
     level," not to appointees "who make policy." It may
     be sufficient that the appointee is in a position
     requiring the exercise of discretion concerning issues
     of public importance. This certainly describes the
     bench, regardless of whether judges might be
     considered policymakers in the same sense as the
     executive or legislature.

111 S. Ct. at 2404.

 Earlier lower court decisions give further definition to the

characteristics of a "policymaking level" appointee. For example, in
Stillians v. Ohio, 843 F.2d 276 (8th Cir. 1988), the court was called
upon to decide whether the Director of the Iowa Arts Council was
protected under the ADEA. In holding that the director was within the
policymaker exception, the court enunciated three factors relevant to that
determination: whether the director had discretionary, rather than solely
administrative, powers; whether the director served at the pleasure of the
appointing authority; and whether the director formulated policy. 843
F.2d at 278. See also Gregory v. Ashcroft, 898 F.2d 598, 604 (8th Cir.
1990), aff'd 111 S. Ct. 2395 (1991) (list not intended to be exhaustive
or necessarily applicable in all respects to every kind of appointed
official). Addressing the same issue with respect to a community
college president, the Sixth Circuit examined whether the president had
a significant role in the policymaking of the college and whether he was
more than a "mere administrator with some measure of discretionary
power." EEOC v. Board of Trustees of Wayne Co. Community College,
723 F.2d 509, 511 (6th Cir. 1983).

                                 III

                              Masters

A. Policymaker Exception Inapplicable

 Under Maryland Rule 2-541, masters are appointed by a majority

of the judges of the circuit court to perform certain duties. For
example, a master is assigned to hear specific types of cases, including
alimony pendente lite; support, custody, or visitation of children
pendente lite; possession or use of the family home; and support of
dependents. Rule 2-541(b) and Rule S73A. In addition, the court may
"refer to a master any other matter or issue not triable of right before a
jury."3

 Masters serve at the pleasure of the appointing court and are officers

of the court in which a referred matter is pending. Rule 2-541(a)(3).
Masters may conduct hearings, compel the attendance of witnesses,
administer oaths, rule on the admissibility of evidence, examine
witnesses, and make findings of fact and conclusions of law. Rule 2-
541(c). Following a hearing, masters file proposed recommendations
to the circuit court. Either party may file exceptions to those
recommendations. Once exceptions are filed, or the time for filing has
expired, the circuit court may hold a hearing or may decide exceptions
without a hearing. The court then makes the final adjudication.

 In short, masters are not empowered to decide cases but only to

make formal recommendations to a judge. As the Court of Appeals
stated in Matter of Anderson, 272 Md. 85, 321 A.2d 516, appeal
dismissed 419 U.S. 809 (1974), masters are entrusted "with no part of
the judicial power of the state." A master, said the Court, "is a
ministerial officer, and not a judicial officer." Anderson, 272 Md. at

106. See also Cohen v. Goldstein, 58 Md. App. 699, 474 A.2d 229
     (1984); Wenger v. Wenger, 42 Md. App. 596, 402 A.2d 94 (1979); 72
     Opinions of the Attorney General 281, 284 n.4 and accompanying text
     (1987).

     3
     This language reflects the recent amendment to Rule 2-541. See 18:13
     Md. Reg. 1477 (June 28, 1991).

     As the Supreme Court summarized in Swisher v. Brady, 438 U.S.
     204, 208-09 (1978):

         Central to this holding [in Anderson] was the court's
         conclusion that masters in Maryland serve only as
         ministerial assistants to judges; although authorized to
         hear evidence, report findings and make
         recommendations to the judge, masters are entrusted
         with none of the judicial power of the state, including
         the sine qua non of judicial office - the power to enter
         a binding judgment.
     

These characterizations of a master's position, repeated by the Maryland
courts and summarized by the Supreme Court, make it abundantly clear
that the role of a master is not the equivalent of that of a judge.

  Judges make policy, it has been said, "to the extent that judging

involves law making to fill the interstices of authority found in
constitutions, statutes, and precedents ...." EEOC v. Massachusetts, 858
F.2d 52, 55 (1st Cir. 1988). Furthermore, many judges exercise
considerable policymaking responsibility in the supervision of the court
system. See Gregory v. Ashcroft, 898 F.2d at 602. In our view, the
same cannot be said of appointed masters.4 Accordingly, appointed
masters do not fall within the policymaker exception.

B. "Immediate Advisor" Exception Inapplicable

 The ADEA also excepts from the definition of employee "an

immediate advisor with respect to the exercise of the constitutional or
legal powers of the office." However, a position like that of a master is
not encompassed by this phrase, in our view.5

We have not found any cases that apply this phrase as a discrete

exception. Rather, the "immediate advisor" language is usually read as
a component of either the policymaker or personal staff exception.
Generally, the ADEA applies unless the employee works with the
appointing authority as a confidant or personal aide. Compare, e.g.,
Ingram v. Dallas County, 688 F. Supp. 1146 (N.D. Tex. 1988) with
EEOC v. Reno, 758 F.2d 581 (11th Cir. 1985).

The exception requires an intimate, one-to-one relationship between

the appointing authority and the advisor. In our view, a standing
master, who makes recommendations to any one of a number of circuit
court judges, is not the kind of confidential advisor to whom the
exception applies.

 4
   Although a master serves at the pleasure of the appointing court and is

covered under the Judicial Pension Plan, these factors are far from conclusive and
are outweighed by the fact that a master exercises minimal discretion and has
virtually no role in policymaking for the State judiciary.
5
As noted in Part IIB above, the exceptions are to be narrowly construed.

                                   IV

                       Judicial Pension Plan

 We have also considered the provision in the Judicial Pension Plan

that mandates a cessation of contributions at age 70 or after acquiring 16
years of creditable service. Article 73B, §§55(o) and 57(f) of the
Maryland Code. Under Ashcroft, this provision poses no special
problem as it applies to judges, since their mandatory retirement does
not violate the ADEA. But this provision also applies to masters and
workers' compensation commissioners, who are protected by the
ADEA.6

 6
    Article 73B, §55(h) provides that the term "judge," for purposes of the

Pension Plan, "also includes any commissioners of the Workmens' Compensation
Commission, and any master in chancery or master in juvenile causes ... who serves
on a full-time basis ..."

 In Cohen v. Goldstein, 58 Md. App. 699, 474 A.2d 229 (1984), the

Court of Special Appeals had occasion to construe the provisions of the
Judicial Pension Plan as they apply to masters. Specifically, Cohen
involved a master who was approaching the age of 70. In order to be
entitled to military service credit as provided in Article 65, §88, he
needed to serve beyond the age of 70. Despite advice from the Attorney
General to the contrary, the master continued to serve past his 70th
birthday and subsequently claimed creditable service benefits for that
time. 58 Md. App. at 703. His claim for service beyond the age of 70
was rejected.

 At the Court of Special Appeals, the master argued that since

nothing in the Judicial Pension Plan required masters to retire at the age
of 70, the only limitation on his right to continue contributions to that
plan was that a member shall contribute for 16 years but not thereafter.
While the court agreed with the master that he was not subject to a
mandatory retirement age, it rejected his argument that his 16 years
could be accumulated beyond the age of 70.7 Specifically, the court
read the 16 year provision "not as an entitlement to contribute for up to
16 years, even after reaching 70, but rather as a cut-off of contributions
when the 16 years is attained prior to reaching 70." 58 Md. App. at 705
(emphasis in original).

 7
   In 1980, the Court of Appeals adopted the provision in Rule 596, the

precursor to Rule 2-541, requiring a standing master to retire at age 70. By order
of the Court of Appeals, that provision had a "grandfather clause" providing, in
pertinent part, that the rule did not apply to "a person serving as a standing master
on the effective date of this Order." 7:21 Md. Reg. 1975 (Oct. 17, 1980).

 A 1986 amendment to the ADEA, effective in 1988, calls that

decision into question. Specifically, Public Law No. 99-509, 100 Stat.
1973, added subsection (i) to §623 of the ADEA, providing in pertinent
part as follows:

           (1) Except as otherwise provided in this
      subsection, it shall be unlawful for an employer, ... to
      establish or maintain an employee pension benefit plan
      which requires or permits -

             (a) In the case of a defined benefit plan, the
      cessation of an employee's benefit accrual, or the
      reduction of the rate of an employee's benefit accrual,
      because of age

           (2) Nothing in this section shall be construed to
      prohibit an employer, ... from observing any
      provision of an employee pension benefit plan to the
      extent that such provision imposes (without regard to
      age) a limitation on the amount of benefits that the
      plan provides or a limitation on the number of years of
      service or years of participation which are taken into
      account for purposes of determining benefit accrual
      under the plan.

 In light of this amendment, the Judicial Pension Plan, as applied to

masters and workers' compensation commissioners, must be interpreted
to allow 16 years of contributions even if a portion or all of those years
occur after the age of 70.8 The provision may no longer be construed
as it was in Cohen, to prohibit contributions beyond the age of 70; such
an application would violate the ADEA.

                                     V

                               Conclusion

In summary, it is our opinion that masters appointed by the circuit

court are protected by the ADEA against mandatory retirement.
Therefore, the portion of Maryland Rule 2-541 that requires a standing
master to retire at age 70 is not enforceable.

                                                 J. Joseph Curran, Jr.
                                                 Attorney General

                                                  Mary O'Malley Lunden
                                                  Staff Attorney

Jack Schwartz
Chief Counsel
Opinions & Advice

 8
    The ADEA provides that the term "defined benefit plan" has the meaning

provided in 29 U.S.C. §1002(35), a definition in the Employee Retirement Income
Security Act ("ERISA"). See 29 U.S.C. §623(j)(9)(A). Under ERISA, generally
a defined benefit plan is any plan that is not an "individual account plan" or a
"defined contribution plan." As we understand it, under the judicial plan, there is
no individual account for each participant and benefits are not based solely upon the
amount contributed to the judge's account. Thus, the Judicial Pension Plan is not an
individual account plan or a defined contribution plan as those terms are defined in
ERISA. 29 U.S.C. §1002(34). Accordingly, the Judicial Pension Plan is a defined
benefit plan.