Tuesday, October 26, 2010

Age Ain’t Nothin’ but a Number: Qualified

by Andrew Delaney

Badgely v. Walton, 2010 VT 68

When Vermont State Police officers George Badgely and Ruth Whitney reached age 55, they were involuntarily retired under 3 V.S.A. § 459(a)(2). They brought a claim against the Department of Public Safety in Windham Superior Court, arguing that their involuntary retirement violated the Common-Benefits Clause of the Vermont Constitution. The lower court initially found that sovereign immunity barred a damages claim, held a bench trial on the remaining claims, and found for the Department of Public Safety.

On appeal, Badgely and Whitney argued that the mandatory retirement age, as well as the public-safety-officers exception to Vermont’s Fair Employment Practices Act (21 V.S.A. § 495f), violates the Common-Benefits Clause of the Vermont Constitution.

Not so, sayeth the Court. It notes that “the primary justification for the mandatory retirement policy is maintaining public safety.” After a discussion of the parties’ respective expert witnesses’ testimony, we are treated to a short refresher course on rational-basis review under the United States Constitution. If you skipped reading Murgia or Vance in con law, here is a chance to catch up.


The Court next discusses the federal Age Discrimination in Employment Act, concluding that there has been some congressional conflict over safe harbor provisions, and that at this point, nobody really knows what is going on. In other words, nobody has any ADEA what is going on with ADEA. (Insert rimshot.)

The Court then noted the applicable standard to a Common-Benefits-Clause claim under the Vermont Constitution. This, of course, is the three-part test articulated in Baker v. State. I like to call this the people, purpose, and proximity test. Applying the test, the Court found, in essence: (1) that the people are State Police Officers older than 55 years of age; (2) that the purpose of the mandatory retirement age is to promote public safety; and (3) that there is enough proximity to classify the mandatory retirement age as bearing a “reasonable and just relation” to its purpose. Reader be warned: the Vermont Supreme Court neither approved, endorsed, nor reviewed this pithy oversimplification of the Baker case. The Court’s analysis, at nineteen paragraphs, is slightly more nuanced.

Finally, the Court also took issue with an expert’s 25%-failure rate correlating to a 75%-pass rate, and noted that physical and mental faculties are more likely to decrease with age. The Court concluded that staying its hand was the most-prudent course of action, and punted to the Legislature.

In her dissent, Justice Johnson focuses solely on the Common Benefits clause analysis. Adding thirty-two paragraphs of analysis, Justice Johnson argues that the Court paid mere lip service to the Baker test and chose instead to employ the 30-plus-year-old rational-basis test articulated by the U.S. Supreme Court in Murgia and Vance.

For Justice Johnson, the Baker analysis would strike the mandatory retirement age.  In its place she would install the physical and mental testing program as the determining factor for retirement. In other words, if you can still do your job, you should get to keep it.

Unfortunately, neither the majority nor the dissent supported the idea of annual gladiatorial combat challenges to test fitness and acumen amongst the troopers.  We can only hope the Senate will see the wisdom in such bread and circus civil testing.

1 comment:

  1. Our legislators must take up this important issue and hopefully do it this next (2011) year. Allowing officers to stay on the job longer than age 55 should be coupled with regulations that each officer must maintain physical fitness and capabilities along with mental acuity tests to prove continued fitness for this very active duty position. Think of the knowledge an officer has gained in his/her many years in this career, that at an age of 55 for retirement is then lost as an important resource to the force, VSP, and the community.

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