SIDNEY H. CHERNICK vs. CHIEF ADMINISTRATIVE JUSTICE OF THE TRIAL COURT.

SIDNEY H. CHERNICK vs. CHIEF ADMINISTRATIVE JUSTICE OF THE TRIAL COURT.

395 Mass. 484

February 8, 1985 - July 24, 1985

Suffolk County

Present: HENNESSEY, C.J., WILKINS, NOLAN, LYNCH, & O'CONNOR, JJ.

General Laws c. 221, Section 72, establishing a mandatory retirement age of seventy for court officers was an exception to the provisions of G. L. c. 32, Sections 90F and 90G, as appearing in St. 1977, c. 735, and St. 1978, c. 557, respectively, allowing certain State employees to continue working after they have reached the mandatory retirement age, and consequently, a court officer who had attained seventy years of age was not entitled to continue his employment pursuant to Sections 90F and 90G. [486-488]

CIVIL ACTION commenced in the Superior Court Department on June 29, 1984.

The case was reported to the Appeals Court by Andrew R. Linscott, J. The Supreme Judicial Court granted a request for direct appellate review.

John Ryan, III, for the plaintiff.

Ilene Robinson for the defendant.

O'CONNOR, J. Sidney Chernick is employed by the Commonwealth as a court officer in the Hampden County Superior Court. He is a "member in service" of the State employees' retirement system as that term is used in G. L. c. 32 (1984 ed.). He is also a veteran. Court officers are classified in Group 1 of the retirement system. G. L. c. 32, Section 3 (2) (g). McCarthy v. Sheriff of Suffolk County, 366 Mass. 779 , 780 (1975). The maximum retirement age for employees in Group 1 is seventy. G. L. c. 32, Section 1. The employment of court officers is also governed by G. L. c. 221, Section 72, which provides in part that

Page 485

no court officer "shall hold office . . . beyond age seventy years." G. L. c. 221, Section 72 (1984 ed.).

In 1977, the Legislature enacted a statute entitled "An Act permitting certain employees to continue working after they have reached the mandatory retirement age." St. 1977, c. 735. The statute amended G. L. c. 32, by inserting a new Section 90F. That section provides in pertinent part: "Any member in service, classified in Group I shall continue in service, at his option, notwithstanding the fact that he has attained age seventy; provided, however, that he is mentally and physically capable of performing the duties of his office or position. Such member shall annually, at his own expense, be examined by an impartial physician designated by the retirement authority to determine such capability." G. L. c. 32, Section 90F (1984 ed.). In 1978, the Legislature enacted a similar statute amending G. L. c. 32, by inserting a new Section 90G. St. 1978, c. 557. That section is, in all relevant aspects, identical to Section 90F, except that Section 90G applies only to veterans. [Note 1]

On or about June 24, 1984, Chernick attained seventy years of age. Pursuant to G. L. c. 32, Sections 90F and 90G, he applied to the State Board of Retirement (board) to be allowed to continue in service past the maximum retirement age seventy. On or about May 7, 1984, Chernick received notice that the board had approved his continuance in office for one year beyond the maximum retirement age. [Note 2] However, on or about May 29, 1984, the office of the Chief Administrative Justice of the Trial Court informed Chernick that, notwithstanding the decision of the board, he would be retired on June 30, 1984, pursuant to the requirements of G. L. c. 221, Section 72.

Page 486

Chernick then brought this action in the Superior Court seeking injunctive and declaratory relief. Specifically, the complaint sought an injunction prohibiting the defendant from requiring him to retire on June 30, 1984, and a declaration of the legal rights of the parties. On July 10, 1984, after a hearing, a judge in the Superior Court granted the plaintiff's motion for a preliminary injunction. On a joint motion by the parties and a stipulation to the material facts, the judge reported the case without decision for determination by the Appeals Court pursuant to Mass. R. Civ. P. 64, 365 Mass. 831 (1974). We granted the defendant's application for direct appellate review.

The only issue presented is whether the Legislature, by enacting G. L. c. 32, Sections 90F and 90G, intended to create an exception to the mandatory retirement age for court officers established by G. L. c. 221, Section 72. We conclude that the Legislature did not intend to create such an exception.

General Laws c. 32 establishes a contributory retirement system for employees of the Commonwealth. The statute classifies employees in various groups depending upon the nature of their employment, G. L. c. 32, Section 3 (2) (g), and establishes a maximum retirement age for each group. G. L. c. 32, Section 1. Before 1972, there was no specific statutory provision governing the retirement of court officers. As members of Group 1, they were required to retire at age seventy. However, in 1972, the Legislature amended G. L. c. 221, Section 72, to establish sixty-five as the mandatory retirement age for court officers. G. L. c. 221, Section 72, as appearing in St. 1972, c. 740, Section 10. [Note 3] By virtue of that enactment, the mandatory age for court officers' retirement was no longer set by G. L. c. 32.

Page 487

In 1978, the Legislature amended G. L. c. 221, Section 72, raising the mandatory age for retirement of court officers to seventy. St. 1978, c. 478, Section 252. The Legislature could have accomplished the same result by simply deleting the mandatory retirement age provision in G. L. c. 221, Section 72. General Laws c. 32 then would have set the age for court officers' mandatory retirement, as it did prior to 1972. By its 1978 amendment the Legislature continued to employ G. L. c. 221, Section 72, and not G. L. c. 32, as the statute governing the mandatory retirement age for court officer, and nothing in the history or language of G. L. c. 32, Sections 90F and 90G, suggests any change in legislative approach.

Section 90F was added to G. L. c. 32 in 1977, prior to the amendment of G. L. c. 221, Section 72, which increased the court officers' mandatory retirement age to seventy. When Section 90F was added to G. L. c. 32, the mandatory retirement age for Group 1 was seventy, but for court officers it was sixty-five. The language of Section 90F, as inserted by St. 1977, c. 735, "Any member in service, classified in Group 1, shall continue in service, at his option, notwithstanding the fact that he has attained age seventy" provided that a physician determines he is capable to do so, could not have referred to court officers, who, by virtue of G. L. c. 221, Section 72, were no longer in service at seventy years of age. It is clear that the Legislature did not view Section 90F as an amendment to G. L. c. 221, Section 72. It is equally clear that the 1978 Legislature did not intend to amend G. L. c. 221, Section 72, by adding Section 90G to G. L. c. 32. In all material respects, the language of G. L. c. 32, Section 90G, tracks G. L. c. 32, 90F.

We reject Chernick's contention that G. L. c. 32, Sections 90F and 90G, create an exception to G. L. c. 221, Section 72. To reach that result, we would have to conclude that the Legislature partially repealed, by implication, the mandatory retirement provision of G. L. c. 221, Section 72. "Such repeals have never been favored by our law. Unless the prior statute is so repugnant to and inconsistent with the later enactment that both cannot stand, then the former is not deemed to have been repealed." North Shore Vocational Regional School Dist. v.

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Salem, 393 Mass. 354 , 358 (1984), quoting Commonwealth v. Bloomberg, 302 Mass. 349 , 352 (1939). See also Haffner v. Director of Pub. Safety of Lawrence, 329 Mass. 709 , 713-714 (1953). "That principle has particular force in the context of a special statute, such as [G. L. c. 221, Section 72], followed by a general statute such as [G. L. c. 32, Sections 90F and 90G]. `[S]trong terms are required to show a legislative intent to supersede by a general act a special act . . . .'" North Shore Vocational Regional School Dist. v. Salem, supra at 358-359, quoting Haffner v. Director of Pub. Safety of Lawrence, supra at 714. "Where the later general statute does not present an irreconcilable conflict the prior special statute will be construed as remaining in effect as a qualification of or exception to the general law." 1A C. Sands, Sutherland Statutory Construction Section 23.15 (4th ed. 1972).

We conclude, therefore, that G. L. c. 221, Section 72, establishing a mandatory retirement age for court officers, is an exception to the provisions of G. L. c. 32, Sections 90F and 90G, and that Chernick is not entitled to continue his employment pursuant to those sections. We remand the case to the Superior Court for entry of a final order consistent with this opinion.

So ordered.

FOOTNOTES

[Note 1] General Laws c. 32, Section 90G (1984 ed.), provides in part: "Any member in service, classified in Group 1, who is a veteran, shall continue in service, at his option, notwithstanding the fact that he has attained age seventy; provided, however, that he is mentally and physically capable of performing the duties of his office or position. Such member shall annually, at his own expense, be examined by an impartial physician designated by the retirement authority to determine such capability."

[Note 2] The record does not indicate whether the board granted Chernick permission to continue working pursuant to Section 90F or pursuant to Section 90G. Both sections appear to apply equally to Chernick, who is a veteran, and he relies on both sections in support of his right to continue working.

[Note 3] In McCarthy v. Sheriff of Suffolk County, 366 Mass. 779 (1975), in sustaining the constitutionality of G. L. c. 221, Section 72, we said that "[e]xamination of the various groups established by [G. L. c. 32, Section 3 (2) (g)] discloses a legislative intent to provide for earlier retirement of those government officers concerned with the safety of the public." We recognized that "[c]ourt officers, in their attendance on sessions of the court, may be called upon to protect the court and the public," and that "many court officers are responsible for the custody of prisoners in the criminal sessions." Id. at 786-787.