Could South Carolina bar election to The Citadel’s Board of Visitors for a term extending past age 75?

Plain-English summary

In a 1997 opinion, the South Carolina Attorney General's office predicted that a court would uphold the state law barring election or reelection to The Citadel's Board of Visitors for a term extending beyond the member's seventy-fifth birthday. The office concluded that board members were excluded from the federal Age Discrimination in Employment Act as appointees at a policymaking level and that the age limit did not appear to violate equal protection.

The opinion relied on the board's broad power to govern and manage The Citadel and on cases giving age classifications deferential constitutional review. It superseded a 1989 AG opinion to the extent that earlier analysis would apply to this board. The conclusion was framed as a prediction about what a court would do. The office said the statutory limit should be followed unless overturned, repealed, or amended.

Currency note

This opinion was issued in 1997. 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

Q: What appointment did the age rule prohibit?
A: As the statute was quoted, neither the General Assembly nor the Association of Citadel Men could elect or reelect a member to a term extending past that person's seventy-fifth birthday.

Q: Did the opinion treat Board of Visitors members as covered employees under the federal age law?
A: No. It treated their governing powers as placing them within the statute's exclusion for policymaking appointees.

Q: Did the office say the age rule violated equal protection?
A: No. It predicted a court would uphold the rule, citing cases that did not treat age as a suspect classification or board service as a fundamental interest.

Q: What happened to the office's earlier contrary age-discrimination opinion?
A: The 1997 opinion said its 1989 view was superseded to the extent it would apply to The Citadel's Board of Visitors.

Background and statutory framework

The Secretary of State asked whether S.C. Code Ann.§ 59-121-30 conflicted with the federal age-discrimination statute or the Constitution. The office read the board term restriction as mandatory. It then compared the board's policymaking duties with the federal exclusion in 29 U.S.C.A. § 630 and applied equal-protection precedents. The resulting advice concerned the board's age-limited election terms, not every state board or employee.

Citations and references

• Statutes discussed: S.C. Code Ann.§ 59-121-30 (board term age restriction); 29 U.S.C.A. § 630 (federal employee definition).

Official title

Requesting as to S.C. Code Ann. § 59-121-30 (1990) which provides that no member of the Board of Visitors of the Citadel “…shall be elected or re-elected either by the General Assembly or by the Association of Citadel Men to fill any term of office the duration of which shall extend beyond the member’s seventy-fifth birthday.”

Requester

The Honorable James M. Miles, Secretary of State, State of South Carolina

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-15-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97jan15miles.pdf

Original opinion text

STATE of SOUTH CAROLINA
CHARLES MOLOi"Y CONDON
ATTOR!\:EY GE:>;ERAL

Office of the Attome)I General

Columbia 29 21 I

January 15, 1997

The Honorable James M. Miles
Secretary of State
State of South Carolina
Post Office Box 11350
Columbia, S.C. 29211
Dear Mr. Secretary:
You have requested an opinion from this Office as to S.C. Code Ann.§ 59-121-30 (1990) which provides that no member of the Board of Visitors of The Citadel "... shall be elected or re-elected either by the General Assembly or by the Association of Citadel Men to fill any term of office the duration of which shall extend beyond the member's seventy-fifth birthday." Your question is whether this provision is unconstitutional or violates the Federal Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621, et seq. At the outset, I must note that this statute is entitled to a presumption of constitutionality. "Every legislative act must be presumed constitutional and should be declared unconstitutional only when its invalidity is manifest beyond a reasonable doubt." Nichols v. South Carolina Research Authority, 290 S.C. 415, 351 S.E.2d 155 (1986); citing Battle v. Willcox, 128 S.C. 500, 122 S.E. 516 (1924). In addition, several principles of statutory construction are relevant to your inquiry. First, in interpreting a statute, the primary objective is to ascertain and effectuate the intent of the Legislature. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). Moreover, the words of a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991). Where the terms of a statute are clear, the court must apply those

(803) 734-3970

(803) 734-3646 Facsimile

The Honorable James M. Miles
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January 15, 1997
terms according to their literal meaning. Paschal v. State Election Commission, 317 S.C. 434, 454 S.E.2d 890 (1995). Use of the word "shall" in a statute generally connotes mandatory compliance. S.C. Dept. of Highways and Public Transp. v. Dickinson, 288 S.C. 189, 341 S.E.2d 134 (1986).

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The ADEA excludes from the definition of "employee" thereunder" ... any person elected to public office in any State or political subdivision ... by the qualified voters thereof ... or an appointee on the policymaking level .... " 29 U.S.C.A. § 630. A previous opinion of this Office concluded that a magistrate would be exempt from ADEA coverage by this provision. Op. Atty. Gen. No. 93-49 (July 15, 1993) citing Gregory v. Ashcroft, 501 U. S. 452 (1991) 1• Similarly, because the Board of Visitors has broad powers including the authority to adopt regulations for the "organization ... good government and management" of The Citadel, Board members should be exempt from the ADEA as "appointee[s] on the policymaking level." Although a 1989 opinion concluded that the ADEA would override State law as to the mandatory retirement or reelection of the members of the Employment Security Commission, that opinion is hereby superseded to the extent that it would apply to the Board of Visitors. The age limitation also does not appear to be unconstitutional under the Equal Protection Clause of the United States Constitution. See, Gregory v. Ashcroft, supra, (upholding a mandatory retirement provision for State judges); see also, Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977)(upholding age restriction for applicants for police officer positions); Francke v. U.S. Department of the Treasury, 721 F. Supp. 47 (S.D.N.Y. 1989)(upholding maximum age requirement for application for law enforcement positions in U.S. Customs Service). As stated in Gregory, "[i]n cases where a classification burdens neither a suspect group [age is not a suspect classification] nor a fundamental interest [no fundamental interest exists in being a judge] 'courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws."' 501 U.S. at 4 70-71. Accordingly, a Court would be "quite reluctant" to overturn the age limitations for the Board of Visitors when neither a suspect class is involved nor a fundamental interest. Based on the foregoing, it is the opinion of this Office that a court would uphold the constitutionality of the age restriction in §59-121-30 and its exemption from the ADEA. Therefore, unless and until this provision is overturned, repealed or amended, no

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Gregory held that the ADEA did not apply to State judges in Missouri.

The Honorable James M. Miles
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January 15, 1997
individual should be elected or reelected by either the General Assembly or the Association of Citadel Men to fill any term of office that would extend beyond the member's seventy-fifth birthday.

If you have additional questions, please do not hesitate to contact me.

JRB/ph