Badgley v. Walton , 188 Vt. 367 ( 2010 )

Dooley, J.

¶ 1. Plaintiffs George Badgley and Ruth Whitney appeal the Windham Superior Court’s dismissal of their claim that the mandatory retirement of public safety officers violates the Common Benefits Clause of Chapter I, Article 7 of the Vermont Constitution. We affirm.

¶2. Plaintiffs are former state troopers who were forced to retire, under 3 V.S.A. § 459(a)(2), when they reached the age of fifty-five.¹ They brought an action for injunctive relief and damages against the Vermont Department of Public Safety and the Commissioner of Public Safety. Plaintiffs argue that the mandatory retirement of public safety officers violates the Common Benefits Clause of the Vermont Constitution. Vt. Const, ch. I, art. 7. Plaintiffs also argue that the statutory exception to the Vermont Fair Employment Practices Act for law enforcement officers, 21 V.S.A. § 495f, is unconstitutional under the same provision of the Vermont Constitution. Section 495f provides a specific exception to the general prohibition that employers may not discriminate on the basis of age, stating: “Mandatory retirement on account of age, necessitated under a police or firefighter retirement system, is specifically authorized.”

¶ 3. With respect to plaintiffs’ claims for damages, the trial court granted defendants’ motion for judgment on the pleadings, finding that these claims were barred by sovereign immunity. The court then held a bench trial and concluded that the mandatory retirement age did not violate the Common Benefits Clause and entered judgment for defendants on plaintiffs’ remaining claims. This appeal followed.²

¶ 4. We review a trial court’s legal conclusions de novo. Charbonneau v. Gorczyk, 2003 VT 105, ¶ 2, 176 Vt. 140, 838 A.2d 117. We accept a trial court’s findings of fact unless the findings are clearly erroneous. Quenneville v. Buttolph, 2003 VT 82, ¶ 11, 175 Vt. 444, 833 A.2d 1263. Plaintiffs have not challenged the trial court’s findings of fact.

¶ 5. The trial court made extensive findings with respect to the two plaintiffs who were retired under the mandatory retirement law. We need not repeat these findings except to say that both were in good physical shape with good cognitive skills on the date of their retirement. Both had successful, rewarding and productive careers in the state police. Both have done law enforcement work, but not as state police officers, since their retirement.

¶ 6. As we discuss below, the primary justification for the mandatory retirement policy is maintaining public safety. The trial court, accordingly, made findings in this area. The Department of Public Safety administers annual physical fitness tests to its public safety officers. The tests include sit-ups, push-ups, a “sit-and-reach” stretch test, a timed mile-and-a-half run, and a bench-press test. There is also a body-fat determination. Officers are required to meet established standards in each test for their respective age bracket and gender. The standards are set at the achievement level for the median person in the general population for an officer’s gender and age bracket. Officers who fail these tests are given the opportunity to train and retake the tests so that they can maintain their job.

¶ 7. Two expert witnesses testified at the bench trial, one for each side. The plaintiffs’ expert was Dr. Frank Landy, a professor at Pennsylvania State University. Dr. Landy prepared a major report for Congress on whether mandatory retirement policies should be used for law enforcement officers, concluding that they should be replaced by a physical and cognitive testing regime. He testified that age was not a good indicator of an individual’s ability to do the job, at least until one reaches seventy years of age. He concluded that a system that possibly eliminated twenty-five percent of qualified persons from state service was grossly overinclusive.

¶ 8. The findings indicate that the court was skeptical about some of Landy’s conclusions. For example, it found that the ability to develop a valid and acceptable testing regime “is more difficult than Landy opines.” In later findings, the court noted that the advantages of a mandatory retirement system include administrative simplicity, due to the bright-line nature of such a system. It added that a testing regime would be both costly and susceptible to challenges from individual officers and perhaps the officers’ union. Finally, it noted that a testing regime would raise issues about gender differences.

¶ 9. Defendants’ expert witness was Dr. Deborah Gebhardt, who has extensive experience designing tests for job evaluation, particularly for public safety departments. Dr. Gebhardt reviewed Vermont trooper performance testing data in relation to a national database. She determined that performance declined with age and that the difference between those who are over fifty-five and those who are between fifty and fifty-five is significant. She found that there was a strong correlation between physical testing results and job performance evaluations. She supported the mandatory-retirement rule set at age fifty-five because of the evidence of decline in physical and cognitive abilities that comes with age. Dr. Gebhardt further stated that she did not believe that tests exist that could adequately and safely replace the age rule. She testified that she understands that the mandatory retirement rule is overinclusive, but believes that the presence of even twenty-five percent of the troopers who could not meet established physical standards is a major safety concern that justifies mandatory retirement. The trial court specifically agreed with this conclusion.

¶ 10. Defendants also offered witnesses, including two former Commissioners of Public Safety, who testified to the administrative and workforce development advantages of a mandatory retirement law. For instance, the court summarized former Commissioner Kerry Sleeper’s testimony as follows:

He believes that the mandatory retirement system keeps the force viable and promotes younger troopers remaining with the force as the possibility of moving up the ranks is not blocked by long-timers remaining in the upper positions. He found that the arrangement allowed for better planning of promotions and changes since it could easily be ascertained when an officer would leave and open up a position. Since Vermont trooper pay lags behind many states, Kerry found the age 55 retirement helped in recruiting in that they could anticipate promotions as older troopers left. Obviously, the retirement after twenty years on full benefit was also a major factor as was, he felt, the overall reputation of the Vermont State Police.

Other Department witnesses testified similarly.

¶ 11. As discussed in more detail below, the trial court found that the mandatory retirement law does not violate Chapter I, Article 7 of the Vermont Constitution, summarizing that “the overall goal of generally enhanced public safety by a fit force is found to reasonably and necessarily require the mandatory age retirement provision.” The court added that the fact that some police forces have employed testing and evaluations as an alternative to mandatory retirement “does not mean such systems are better in achieving the stated goal or make the use of a mandatory age provision unconstitutional.”

¶ 12. Before we perform the state constitutional analysis required in this case, it is useful to raise two related matters that give context to that analysis. First, the United States Supreme Court has found a similar mandatory retirement scheme to be constitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) (per curiam). Murgia involved a challenge to a Massachusetts law under which state police officers were required to retire at age fifty. The Court held that the retirement law did not trigger strict scrutiny under the Equal Protection Clause because “a right of governmental employment” is not fundamental and the class of police officers over age fifty is not suspect. Id. at 313. Thus, it subjected the retirement law to rational basis review, finding:

[T]he Massachusetts statute clearly meets the requirements of the Equal Protection Clause, for the State’s classification rationally furthers the purpose identified by the State: Through mandatory retirement at age 50, the legislature seeks to protect the public by assuring physical preparedness of its uniformed police. Since physical ability generally declines with age, mandatory retirement at 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age. This clearly is rationally related to the State’s objective. There is no indication that [the law] has the effect of excluding from service so few officers who are in fact unqualified as to render age 50 a criterion wholly unrelated to the objective of the statute.

Id. at 314-16 (footnotes omitted). The Court acknowledged that fitness might be determined “more precisely through individualized testing,” but held that the state had no responsibility to choose that method. Id. at 316.³

¶ 13. Murgia was a per curiam opinion joined by all justices except Justice Marshall, whose dissent criticized the Court’s two-tiered equal protection jurisprudence and suggested a standard involving more active review. See id. at 325 (Marshall, J., dissenting). Justice Marshall further characterized the mandatory retirement statute as the “height of irrationality” given the use and availability of physical ability testing to determine if a state should permit an officer to stay on the job. Id. at 326. He therefore concluded that the mandatory retirement law was “so overinclusive that it must fall.” Id. at 325.

¶ 14. Shortly after Murgia, the United States Supreme Court upheld a sixty-year-old mandatory retirement age for federal foreign service employees in Vance v. Bradley, 440 U.S. 93 (1979). One of the main policies underlying the law at issue was “the rapid advancement of men of ability to positions of responsibility and the elimination of men who have reached their ceilings of performance.” Id. at 99 (quotation omitted). Thus, age-based mandatory retirement was accompanied by a “selection out” process under which employees who were not going to be promoted or who did not meet performance standards for their class were also retired. The Supreme Court accepted this purpose as legitimate on the grounds that it assured that “opportunities for promotion would be available despite limits on the number of personnel classes and on the number of positions in the Service.” Id. at 101.

¶ 15. As in Murgia, the primary rationale accepted by the Court in Vance was the need to guard against the decline in mental and physical reliability of aging employees. See id. at 97. In upholding the law, the Court noted the extremely difficult burden that the plaintiffs had to overcome to successfully challenge the law. Id. at 111. They were required to demonstrate that “the legislative facts on which the classification [was] apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Id. Therefore, the fact that the plaintiffs admitted the negative effects of the aging process was fatal to their case. Id. at 111-12. Although a forced retirement age of seventy may have been more rational, the Court noted that it is not the role of the courts, when applying rational basis review, to resolve factual disputes as to the best method of furthering the legislative purpose. Id. at 112. Rather, the courts’ role is limited to determining whether the legislature had any reasonable basis for acting as it did. Id. at 111. In fact, the Court concluded, the plaintiffs’ awareness that the facts were arguable in itself immunized the statute from attack. Id. at 112.

¶ 16. Justice Marshall also dissented in Vance, taking issue primarily with the majority’s assertion that the factual record was irrelevant to the proper inquiry. Id. at 124 (Marshall, J., dissenting). He argued that mandatory retirement was unnecessary because of the selection out process used by the employer. Id. at 122. He additionally contested the promotional opportunity rationale on the grounds that it would apply in any employment situation where there are a limited number of high-level positions. Id. at 123.

¶ 17. Plaintiffs here argue that we should follow Justice Marshall’s dissents, because the more active standard he espoused is essentially that required by the Common Benefits Clause of the Vermont Constitution. Defendants argue in response that the majority decision in Mwrgia should control because the standard the majority used is closer to that appropriate under the Common Benefits Clause.

¶ 18. The second matter providing context to our state constitutional analysis involves the treatment of mandatory retirement laws for public safety officers under the federal Age Discrimination in Employment Act (ADEA). In general, mandatory retirement provisions are valid under the ADEA only if age is found to be a bona fide occupational requirement for the job. See 29 U.S.C. § 623(f)(1).⁴ However, in 1986 Congress adopted a safe harbor that permitted mandatory retirement of state and local firefighters and law enforcement officers if the requirement was in place on March 3, 1983.^{5 6}See id. § 623(j)(l)(A). The safe harbor expired at the end of 1993, but was retroactively reinstated and expanded in 1996. State and local employers are now allowed to enact new mandatory retirement laws for firefighters and law enforcement officers provided that the retirement age imposed is not lower than fifty-five. See id. § 623(j)(l)(B). The safe harbor was, however, made contingent on the development of “valid, nondiscriminatory job performance tests” by the National Institute for Occupational Safety and Health. See id. § 623(j)(l) (employers must comply with § 3(d)(2)⁶ of the Age Discrimination in Employment Amendments of 1996); Pub. L. 104-208, § 119(2)(a), 110 Stat. 3009. These tests were to be identified in regulations promulgated by the Secretary of Health and Human Services, and employees who took and passed an identified test were to receive an exemption from the mandatory retirement requirement at issue. Pub. L. 104-208, § 119(2)(a), 110 Stat. at 3009-25. Congress gave the Secretary a four-year deadline to develop advisory guidelines as a beginning of the process of issuing regulations, see id., but there has been no action by the Secretary to date. In the meantime, the courts have enforced the safe harbor provision without the expected testing right. See Correa-Ruiz, 573 F.3d at 11-12.

¶ 19. The legislative history of the 1996 safe harbor provisions reflects a division in Congress over the efficacy of testing as an alternative to mandatory retirement laws.⁷ See Drnek v. City of Chicago, 192 F. Supp. 2d 835, 841-42 (N.D. Ill. 2002) (ultimately affirmed by Minch v. City of Chicago, 486 F.3d 294 (7th Cir. 2007)). The court in Dmek quoted floor debate in the House and Senate from sponsors of the 1996 provisions indicating that existing tests were inadequate to ensure a fit and qualified workforce and that the tests discriminated against women and minorities. Id. at 841. The failure of the Secretary to act has left the controversy unresolved at the national level.

¶20. With this context in mind, we turn to plaintiffs’ challenge under the Vermont Constitution. We start by emphasizing that statutes are presumed to be constitutional, Choquette v. Perrault, 153 Vt. 45, 51, 569 A.2d 455, 458 (1989), and are presumed to be reasonable, Colchester Fire Dist. No. 2 v. Sharrow, 145 Vt. 195, 199, 485 A.2d 134, 137 (1984). We have often observed that the proponent of a constitutional challenge has a very weighty burden to overcome. Sharrow, 145 Vt. at 199, 485 A.2d at 137.

¶ 21. The Common Benefits Clause of the Vermont Constitution provides, in pertinent part, “[t]hat government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.” Vt. Const. ch. I, art. 7. In Baker, 170 Vt. at 202-11, 744 A.2d at 869-77, we detailed the history of this constitutional provision, its historical context, the evolution of our caselaw interpreting this provision, and the relationship between our inquiry under this clause to that under the Fourteenth Amendment’s Equal Protection Clause. We rejected the rigid, multi-tiered analysis of the federal Equal Protection Clause analysis in favor of “a relatively uniform standard, reflective of the inclusionary principle at [the Common Benefits Clause’s] core.” Id. at 212, 744 A.2d at 878. We explained the relevant inquiry as follows:

When a statute is challenged under Article 7, we first define that “part of the community” disadvantaged by the law. We examine the statutory basis that distinguishes those protected by the law from those excluded from the state’s protection. . . .

We next look to the government’s purpose in drawing a classification that includes some members of the community within the scope of the challenged law but excludes others. Consistent with Article 7’s guiding principle of affording the protection and benefit of the law to all members of the Vermont community, we examine the nature of the classification to determine whether it is reasonably necessary to accomplish the State’s claimed objectives.

We must ultimately ascertain whether the omission of a part of the community from the benefit, protection and security of the challenged law bears a reasonable and just relation to the governmental purpose. Consistent with the core presumption of inclusion, factors to be considered in this determination may include: (1) the significance of the benefits and protections of the challenged law; (2) whether the omission of members of the community from the benefits and protections of the challenged law promotes the government’s stated goals; and (3) whether the classification is significantly underinclusive or overinclusive.

Id. at 212-14, 744 A.2d at 878-79. We accord deference to “legislation having any reasonable relation to a legitimate public purpose.” Id. at 204, 744 A.2d at 871-72.

¶ 22. Under the inquiry outlined in Baker, we first identify the part of the community affected by this law. The parties do not dispute that state public safety employees assigned to police and law enforcement duties over age fifty-five who, before their fifty-fifth birthdays, were capable of working as police officers, constitute the affected segment of the community. See 3 V.S.A. § 459(a)(2); see also id. § 455(a)(ll)(C), (9)(B) (applicable definitions).

¶ 23. We next examine the proffered governmental purpose for drawing a classification that includes some members of the community but excludes others. The purpose asserted here is to maintain a state police force that is mentally and physically capable of performing the task of ensuring public safety.⁸ As we noted in Baker, any “statutory exclusions from publicly-conferred benefits and protections must be premised on an appropriate and overriding public interest.” 170 Vt. at 206, 744 A.2d at 873 (quotation omitted). It must be conceded that having a mentally and physically capable police force is an appropriate or highly important purpose. See Murgia, 427 U.S. at 325 (Marshall, J., dissenting) (conceding that “the purpose of the mandatory retirement law is legitimate, and indeed compelling”).

¶ 24. Plaintiffs argue that the State also has an interest in guarding against age discrimination, as shown generally in the Vermont Fair Employment Practices Act (FEPA). Cf. Gately v. Massachusetts, 811 F. Supp. 26, 28 (D. Mass. 1992) (“While the public has a compelling interest in the continued efficient provision of law enforcement services, it also has a compelling interest in eradicating age discrimination”), aff'd, 2 F.3d 1221 (1st Cir. 1993). We understand plaintiffs to argue that the second interest weakens the first, or makes it illegitimate, and that we should weigh this effect in examining the interest underlying the law. We disagree. The Legislature adopted both FEPA and the mandatory retirement age legislation for public safety officers, apparently believing that there was no fundamental contradiction between the two laws. In fact, the Legislature included in FEPA a specific exclusion for police and firefighter retirement systems. See 21 V.S.A. § 495f. Our function is not to substitute our view of the appropriate balance for that of the Legislature. In our Common Benefits Clause inquiry, we do not judge whether the policy decision made by the Legislature was wise, but rather whether this decision to exclude a portion of the community from the common protection of the law was reasonable and just in light of its purpose. Cf. Harris v. McRae, 448 U.S. 297, 326 (1980) (“In making an independent appraisal of the competing interests involved here, the District Court went beyond the judicial function. Such decisions are entrusted under the Constitution to Congress, not the courts. It is the role of the courts only to ensure that congressional decisions comport with the Constitution”).

¶ 25. We next turn to the third element of the Common Benefits Clause analysis and consider whether the mandatory retirement provision bears a reasonable and just relationship to legitimate state interests. In making their argument, plaintiffs emphasize the phrase “reasonably necessary” as used in Baker. See 170 Vt. at 213-14, 744 A.2d at 878 (“Consistent with Article 7’s guiding principle of affording the protection and benefit of the law to all members of the Vermont community, we examine the nature of the classification to determine whether it is reasonably necessary to accomplish the State’s claimed objectives.”). They argue that the mandatory retirement policy may be desirable, but it cannot be considered necessary, especially in relation to the alternatives. They also cite federal authority that mandatory retirement requirements have not been found reasonably necessary such that age would be a bona fide occupational qualification. See supra, ¶ 18 n.4.

¶ 26. In reading Baker as a whole, we think that plaintiffs have placed too much emphasis on the word “necessary.” Baker requires that a classification scheme be “reasonable and just” in relation to the governmental purpose. See id. at 214, 217-24, 744 A.2d at 879, 881-86. Our subsequent decisions support this formulation of the Baker test. See, e.g., In re Estate of Murcury, 2004 VT 118, ¶ 15, 177 Vt. 606, 868 A.2d 680 (mem.) (concluding that statutory twenty-one-year limitations period for establishing paternity “furthers reasonable and just governmental objectives”); see also Samaha v. Scott’s Constr., Inc., 543 F. Supp. 2d 341, 346 (D. Vt. 2008) (characterizing the Baker test as evaluating “whether the omission of a part of the community from the benefits of the challenged law bears a reasonable and just relation to the governmental purpose” (quotation omitted)). Indeed, an inquiry into necessity would contravene the deference which must control our inquiry and place us in the position of reviewing the wisdom of legislative choices.

¶ 27. In evaluating whether the mandatory retirement statute bears a reasonable and just relation to the governmental purpose, Baker identifies three factors that may be considered: (1) the significance of the benefits to the excluded group; (2) whether the omission of a part of the community promotes the government’s stated goals; and (3) whether the classification is overinclusive or underinclusive. 170 Vt. at 214, 744 A.2d at 879.

¶28. With respect to the first factor, the statute at issue deprives plaintiffs and similarly situated persons of the ability to continue working as state police officers at age fifty-five. Additionally, this cut-off deprives anyone who started his or her career with the state police after age thirty-five from attaining full retirement benefits because these benefits are available only after twenty years of service. We acknowledge that forcing a person to retire from his or her chosen profession with his or her chosen employer is a significant burden. The statute does not forbid all employment, however, or even employment as a police officer with a nonstate employer. The right to work as a state-employed police officer is not as significant a governmental interest as the right to the benefits of marriage addressed in Baker or the right to educational opportunities addressed in Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997). Additionally, although depriving an officer of the ability to earn full retirement benefits imposes a burden, this burden is somewhat mitigated by virtue of it being undertaken knowingly by the officers who entered into their employment after the age of thirty-five.

¶ 29. The nature of the deprivation is demonstrated by the facts of this case. Plaintiffs were productive and effective state police officers who would have maintained their jobs for some period under a regime that solely examined their individual capacities to continue. On the other hand, they were able to find other jobs in law enforcement after their forced retirement, albeit likely with reduced compensation and responsibility.

¶30. With respect to the second factor, the mandatory retirement statute does advance the State’s goal of having a police force that is mentally and physically capable of performing its tasks.⁹ The trial court concluded that the risk that an officer stays on the force when he or she cannot capably perform the duties required “clearly grows with age,” and that risk was underscored by the evidence from defendants’ expert witness. See also Murgia, 427 U.S. at 315 (noting that “physical ability generally declines with age”). The trial court also found that by age fifty-five the physical skills and abilities of a state police officer executing his or her duties have declined. A mandatory retirement age does not advance the State’s goal with respect to younger officers whose capabilities have declined, but there is no evidence that this omission is a significant lapse.

¶ 31. Plaintiffs’ main arguments involve the third factor: whether the classification is overinclusive or underinclusive. They argue that: (1) the mandatory retirement law involuntarily retires a high percentage of those who are physically fit to serve — approximately seventy-five percent of those retired — and is therefore too overinclusive to meet the constitutional standard; and (2) physical-ability testing can protect the State’s interest without being overinclusive. On this factor, the trial court determined that the age fifty-five rule is overinclusive, as plaintiffs argued, in that a percentage of officers over the age of fifty-five are still capable of meeting the requirements of the job. However, the court also determined that all officers gradually lose their physical skills and abilities as they age. As a group, officers in their fifties are generally less physically skilled than those in their twenties, and even those in their forties. It is also clear that some of the declines, both mental and physical, are modest or minimal and would be hard, if not impossible, to detect. Indeed, they may not even obviously affect the day-to-day work of an officer. At some point in one’s seventies to eighties, however, a person would simply not be able to effectively and safely perform the work of a state police officer. Though the chance of a serious incident happening because of an officer’s inability to perform his job is low, the consequences could be grave if the inability is discovered during a life-or-death situation. Such an occurrence could jeopardize the safety of the members of the public and fellow officers.

¶ 32. While the court concluded that the mandatory retirement policy was overinclusive, it did not find that seventy-five percent of officers over age fifty-five are physically able to perform the activities of a state police officer. It instead concluded that the overinclusiveness was “limited.” In advocating the seventy-five percent figure, plaintiffs rely on the testimony of Dr. Gebhardt, a witness for defendants. Because of her extensive experience in the field, Dr. Gebhardt had a large database of physical-ability tests and peer and supervisor job-performance evaluations for law enforcement workers from other jurisdictions. She analyzed those tests to show that physical ability declines with age and that evaluations of an officer’s ability to do the job, as determined by peers and supervisors, also decline with age. The latter finding was shown in part by a chart in her report that displayed the percentage of workers by age who were judged by peers and supervisors to provide “Unacceptable Physical Job Performance.” The percentage rises with age and equals twenty-five percent for those fifty-five years of age and older. Based on this chart, plaintiffs argue that defendants’ witness agrees that seventy-five percent of workers fifty-five years of age and older provided acceptable job performance.

¶ 33. The report is an evidentiary item that the trial court could accept or reject irrespective of its source. There are significant weaknesses in the logical inferences plaintiffs draw from the report that would support rejection by the trial court. For instance, there is no indication, and plaintiffs do not claim, that peer and supervisor evaluation, without more, is an acceptable method of determining the physical ability of employees. Moreover, the line between acceptable and unacceptable job performance was arbitrarily selected by Dr. Gebhardt and not by defendants or, in fact, any law enforcement body. Dr. Gebhardt set the line at “one standard deviation below the mean for the database sample” because “it is a standardized statistical level used by researchers in criterion-related validity studies.” Whether defendant Department would use a statistical measure as its demarcation line between acceptable and unacceptable performance is a matter of speculation.

¶ 34. We must also consider the court’s conclusion, drawn from defendants’ witness, that because of the interdependent nature of police work, even a low percentage of police with unacceptable performance abilities significantly impairs the Department’s ability to perform its mission. If one member of a team cannot perform as required, the entire team cannot perform as required.

¶ 35. We cannot conclude, based on the trial court’s findings and conclusions and the evidence on which they rest, that the mandatory retirement law is so overinclusive that it violates the Common Benefits Clause as a matter of law if there is no alternative to mandatory retirement to meet the State’s legitimate objectives. We emphasize that the trial court found the degree of overinclusiveness to be “limited” and agreed with defendants’ expert witness that twenty-five percent of employees not being able to meet performance standards was a “major safety concern” that justified the mandatory retirement policy. Though mandatory retirement is overinclusive in meeting the need to ensure public safety, the degree of overinclusiveness is speculative, especially in relation to the interdependent nature of the work.

¶ 36. This brings us to plaintiffs’ major argument, that the degree of overinclusiveness must be viewed in relation to alternatives that will meet the State’s legitimate needs without the same degree of overinclusiveness. Specifically, plaintiffs argue that the State’s need can be met through performance testing of officers with virtually no overinclusiveness. In response to this argument and the evidence of plaintiffs’ expert witness, the trial court determined that there are possible alternatives to the age fifty-five rule, noting that there are physical and mental tests used by law enforcement agencies in other jurisdictions to determine those officers who can perform the necessary duties of their work and those who cannot. It found that these tests can be combined with peer and supervisory reviews to evaluate conduct, personality, and work habits. The trial court responded specifically to the argument that the current state police physical ability testing would meet the State’s objective. It found that the current testing involved “no more than very general physical fitness tests and would not as presently designed meet the needs of such a non-mandatory retirement plan.”

¶ 37. The trial court was skeptical about the feasibility of replacing a mandatory retirement law with performance testing to meet the State’s objectives. The two expert witnesses differed on the issue. In response to the strong endorsement of testing by plaintiffs’ expert witness, the court observed that coming up with a testing regime “is more difficult than [Dr.] Landy opines.” The court cited the cost of establishing testing, although it could not quantify that cost. It found serious unresolved issues relating to how testing could account for gender or age. It found “major policy issues” in establishing a “cut score.” It was particularly concerned with the political opposition to testing, the difficulty of overcoming such opposition and the fact “that the field has not progressed as far as it could . . . because of political concerns.” The court concluded that the fact that some police forces have had to adopt testing and evaluations, as an alternative to age-based mandatory retirement, “does not mean such systems are better in achieving the stated goal.” The trial court could not find that a testing and evaluation regime would reduce the overinclusiveness of a mandatory retirement policy and, at the same time, meet the State’s public safety goals.

¶ 38. In reaching our conclusion, we must define the relationship between the evidence presented by the parties and our role in determining the constitutionality of the statute involved. This relationship appears to involve the greatest difference between our approach and that of the dissent. We emphasized at the outset that statutes are presumed to be constitutional and we must accord deference to the policy choices made by the Legislature. To implement these considerations, the United States Supreme Court held in Vance that “it is the very admission that the facts are arguable that immunizes from constitutional attack the congressional judgment represented by this statute.” 440 U.S. at 112. The holding in Vance was amplified in Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981), in which milk sellers challenged a state statute that banned the sale of milk in plastic, nonreturnable, nonrefillable containers, but not in other nonreturnable, nonrefillable containers:

Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, they cannot prevail so long as “it is evident from all the considerations presented to [the legislature,] and those of which we may take judicial notice, that the question is at least debatable.” Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation by merely tendering evidence in court that the legislature was mistaken.

Id. at 464 (quoting United States v. Carolene Prods. Co., 304 U.S. 144, 154 (1938)).

¶ 39. To give deference to the Legislature, we must follow at least a modified form of the approach taken in Clover Leaf Creamery for Article 7 purposes. We see no inconsistency between our holding in Baker, which recognized that we must give deference to the Legislature, and applying the Clover Leaf Creamery approach in appropriate cases. We emphasize that in doing so we are not adopting the federal rational basis standard for evaluating most equal protection claims.

¶ 40. Though we have no evidence of the legislative record in this case, the issues are well framed by the national debate. Indeed, the expert evidence in this case reads like a microcosm of the national debate. Also, unlike virtually all of our recent Article 7 cases, including Baker, see also Choquette, 153 Vt. at 54-55, 569 A.2d at 460 (because of changed circumstances, fence viewer act can “no longer” withstand constitutional attack), the distinctions among community members represented here are of relatively recent origin, judging by the age of the legislation under review. See 1971, No. 231 (Adj. Sess.), §4, as amended by 1977, No. 80, § 1 (enacting 3 V.S.A. § 459(a)(2)); 1981, No. 65, § 4 (enacting 21 V.S.A. § 495f). Moreover, the exact issues being debated in this litigation remain under active investigation and consideration in the political process.

¶ 41. The latter point is important for cases like this. A determination of unconstitutionality would end development of the issue in Vermont. The Legislature, by contrast, can experiment with different approaches to protecting public safety, without irrevocably choosing one until the right approach is clear. The underlying facts are in flux, and changes in those facts will affect the nation’s and Vermont’s responses. Just as Justice Souter observed in Washington v. Glucksberg with respect to a possible constitutional right to assisted suicide, here we “do not decide for all time that [the plaintiffs’] claim should not be recognized.” 521 U.S. 702, 789 (1997) (Souter, J., concurring). We decide only that at this time and on this record, we will follow the Clover Leaf Creamery approach and stay our hand. It would be inappropriate for us to intrude under Article 7 into an ongoing political process that has not reached its end point. We conclude that 3 V.S.A. § 459(a)(2) does not violate Article 7 at this time.

¶42. In reaching this conclusion, we specifically reject the dissent’s argument that when “substantial evidence from qualified experts is adduced against [the law], ... the [State] has the burden of meeting it fairly and refuting it.” Post, ¶ 60. We agree that the expert evidence in this case was relevant to define the extent and nature of the factual disagreement, but we cannot agree that our decision must rest exclusively on this evidence. The dissent’s rule would nullify legislative fact-finding whenever the Court finds that the challenger’s expert witness is more persuasive than that put forward by the State. It would mean that no deference would be given to the Legislature’s policy choice, nor to the Legislature’s own analysis of the factual circumstances that necessarily occurred during the enactment process. As an example of that effect, the dissent would strike down a Vermont statute based primarily on the testimony of an expert witness whose findings and conclusions were rejected by Congress. Further, that rule would place the burden on the State to prove a statute is constitutional, directly rejecting our many holdings that statutes are presumed to be constitutional. Though the dissent pays lip service to deference, its position is the antithesis of deference.

¶ 43. In addition to challenging 3 V.S.A. § 459(a)(2), which contains the age 55 retirement requirement for employees of the Department of Public Safety “assigned to police and law enforcement duties,” 3 V.S.A. § 455(a)(9)(B), plaintiffs challenge 21 V.S.A. § 495f, a section of the Fair Employment Practices Act, setting forth exemptions from the requirements of the act and providing that “[m]andatory retirement on account of age, necessitated under a police or firefighter retirement system, is specifically authorized.” Plaintiffs’ arguments as to why this latter section is unconstitutional are the same as those with respect to 3 V.S.A. § 459(a)(2). For the reasons specified above, we conclude that 21 VS.A. §495f authorizing the mandatory retirement of police officers does not violate the Common Benefits Clause.

¶44. We acknowledge that plaintiffs made many strong policy arguments that the law should abandon a mandatory retirement age for police officers, or that the Legislature should raise the mandatory retirement age to be less overinclusive. These arguments are more appropriately directed to the Legislature than to this Court. We do not decide today that the statute best fulfills the relevant social and economic objectives of the Legislature. We decide only that the mandatory retirement line currently drawn by the Legislature bears a reasonable and just relation to a legitimate state interest, and for that reason, we find no violation of the Common Benefits Clause of Chapter I, Article 7 of the Vermont Constitution.

Affirmed.

1 Section 459(a)(2) provides that any member of Group C of the Vermont Employees Retirement System “shall be retired on a normal retirement allowance on the first day of the calendar month next following attainment of age 55.” Group C of the Retirement System consists of “any regular officer or employee of the department of public safety assigned to police and law enforcement duties.” 3 V.S.A. § 455(a)(ll)(C), (9)(B).

2 Plaintiffs also appeal the trial court’s grant of defendants’ motion for judgment on the pleadings, arguing that if there is a constitutional violation, they are entitled to damages, either under the Vermont Fair Employment Practices Act — after the exception for law enforcement officers in 21 V.S.A. § 495f is eliminated as unconstitutional — or because the Court should recognize a direct cause of action for damages. As we hold herein that there is no violation of the Common Benefits Clause, we need not address these arguments.

3 The United States District Court for the District of Vermont has ruled that Murgia governs an equal protection challenge to the Vermont statute and ruled, therefore, that the mandatory retirement requirement does not offend the Equal Protection Clause. See Galvin v. Vermont, 598 F. Supp. 144, 151 (D. Vt. 1984). Plaintiffs do not attempt to challenge the conclusion of that court, as they do not raise a federal equal protection challenge here.

4 There are a number of decisions addressing whether age is a bona fide occupational requirement for law enforcement officers, and most have found that it is not. Compare Binker v. Pennsylvania, 977 F.2d 738, 742 (3d Cir. 1992) (noting that in previous decision, court “concluded that the record did not establish age as a bona fide occupational qualification” for state police officers in Pennsylvania); EEOC v. Ky. State Police Dep’t, 860 F.2d 665, 667 (6th Cir. 1988) (age is not a bona fide occupational qualification for state police officers); with EEOC v. Mo. State Highway Patrol, 748 F.2d 447, 457 (8th Cir. 1984) (age is a bona fide occupational qualification for state highway patrol officers); EEOC v. New Jersey, 631 F. Supp. 1506, 1515 (D.N.J. 1986) (age is bona fide occupational qualification for state police). Because a bona fide occupational qualification must be “reasonably necessary” to the normal operation of the employer, see 29 U.S.C. § 623(f)(1), and because those words appear in Baker v. State, 170 Vt. 194, 214, 744 A.2d 864, 878 (1999), the Common Benefits Clause case on which they primarily rely, plaintiffs urge us to adopt the ADEA decisions favorable to them and rely upon them as precedent.

5 The chronology of events with respect to the ADEA and law enforcement officers is provided in an appendix to Correa-Ruiz v. Fortuno, 573 F.3d 1, 16-17 (1st Cir. 2009).

6 The reference is a mistake and should be to § 2(d)(2). Correa-Ruiz, 573 F.3d at 6.

7 As the dissent points out, post, ¶ 61, plaintiffs’ expert witness was the principal author of a congressionally-sponsored study on the alternatives to mandatory retirement, but the conclusions and recommendations of the study were not accepted by Congress.

8 The trial court partially based its decision on the governmental purpose of encouraging recruitment because younger officers can better anticipate possible advancement when it is known that superiors will retire at age fifty-five, which is a particular concern because of the few supervisory positions in the state’s small police force. This purpose was supported by the testimony of defendants’ wif> nesses. We have not considered this purpose in reaching our decision.

9 The dissent’s description of the State’s interest as a “pretext,” see post, ¶ 46, is hyperbolic and an indication that the dissent has gone beyond an appellate role under a limited standard of review and into that of a trial judge. The trial court focused on the public safety purpose of the law in making its findings and conclusions. The dissent’s conclusion that the State’s purpose does not justify the age discrimination it finds is present does not make the justification a “pretext.”